The topic of censorship crops up far too much here on Techdirt. Less common are stories about how to circumvent it. The two which follow are great examples of how human ingenuity is able to find unexpected ways to tackle this problem. The first story comes from Spain, and concerns a banned book. As the Guardian reports:
Nacho Carretero?s Fariña, an expose of drug trafficking in Galicia, was published in 2015, but publication and sales were halted last month after the former mayor of O Grove in Galicia, Jose Alfredo Bea Gondar, brought legal action against Carretero and his publisher, Libros del KO. Bea Gondar is suing over details in the book about his alleged involvement in drug shipping.
To get around that ban, a new Web site has been created, Finding Fariña, which explains:
A digital tool searches and finds the 80,000 thousand words that make up “Fari?a” within “Don Quijote”, the most universal classic of Spanish literature, and then extracts them, one by one, so that you can read the forbidden story.
Because what they will never be able to censor your rights as a reader. Nor words. And least of all, “Don Quijote”.
The site sifts through the classic Spanish text to find the words that are then recombined to form the forbidden book. You can click on any word in the book’s online text to find the corresponding section of Don Quijote. Since Fariña contains words that did not exist in the early 17th century, when Cervantes wrote his novel, the Web site recreates them from fragments of words that are found within the work. That’s quite important, since it means that Don Quijote can potentially be used to reconstitute any book, if necessary breaking down unusual words into fragments or even single letters. Equally, the same approach could be adopted for banned texts in other languages: all that is needed is some well-known public domain work that can be mined in the same way.
While press freedom is not available in the worlds most oppressed societies — global music streaming sites are.
Five acclaimed independent journalists from five countries suffering from strict government censorship teamed up with Musical Director Lucas Mayer to turn 10 articles that had previously been censored into 10 uncensored pop songs. These songs were then uploaded onto freely available music streaming sites. Allowing these stories to be slipped back into the countries where they had once been forbidden.
That is, censored information, written by local journalists, is set to music, and then added to playlists that are available on the main streaming platforms like Spotify, Deezer, and Apple Music. In addition, all the songs are freely available from the project’s Web site, in both the original languages and in English.
Although neither method represents a foolproof anti-circumvention technique, or a serious challenge to the authorities concerned, they do underline that however bad the censorship, there is always a way around it.
Update: The Finding Fariña site has now been censored. So far, there’s no sign of a mirror site being set up outside Spanish jurisdiction, which would seem the obvious response.
Back in 2016, the Malaysian government pushed for broad censorship of an already tightly-controlled internet. The basis for this push was the government’s inability to stop Malaysian media from reporting on government corruption. This reporting continued on platforms (and with news agencies) the government didn’t directly control. To shut this down, the government decided to strip immunity from media platforms, making them directly responsible for user content. This allowed the government to control the narrative by going after service providers, rather than those publishing inconvenient facts.
Under the Anti-Fake News 2018 bill, anyone who publishes so-called fake news could face fines of up to 500,000 ringgit ($128,140), up to 10 years in jail, or both.
“The proposed Act seeks to safeguard the public against the proliferation of fake news whilst ensuring the right to freedom of speech and expression under the Federal Constitution is respected,” the government said in the bill.
The government defined fake news as “news, information, data and reports which is or are wholly or partly false” and included features, visuals and audio recordings.
The law, which covers digital publications and social media, would apply to offenders outside Malaysia, including foreigners, if Malaysia or a Malaysian citizen were affected.
The last part attempts to make this enforceable anywhere in the world, putting foreign service providers at risk of accruing fines for refusing to take down anything the government declares “fake news.” The proposed bill has already been criticized by Amnesty International as being nothing more than a “blatant attempt to shield the government from peaceful criticism.” The first part — the contradictory claim that targeting news the government doesn’t like somehow equates to a free speech protection — is just knuckle-dragging dissembling from a government that knows the public doesn’t believe its claptrap.
Even if the government’s intentions are pure (which they certainly aren’t), the term “fake news” is almost impossible to define. Outlandishly false “reporting” is rarely targeted. What’s most commonly referred to as “fake news” is any reporting the party in power doesn’t like. The same would be the case here, as one Malaysian government official helpfully explained:
A deputy minister was quoted in Malaysian media last week as saying that any news on 1MDB that had not been verified by the government was “fake”.
The bill is nothing more than a threat to dangle over the Malaysian public to deter further discussion of government corruption. The government already directly controls the mainstream media, so the addition of an “affecting Malaysian people” clause is there to give it the legal permission to demand removal of content worldwide. Service providers located in other countries should follow blogging platform Medium’s example: when faced with demands to delete reporting on the magical appearance of $700 million in the Malaysian prime minister’s bank account, the platform demanded proof of the government’s claims that the report was false. When this failed to materialize, Medium left the content up and reiterated its support for investigative journalism.
This will likely become law in the near future. The party in power holds a significant majority in the Parliament. The country’s corrupt government will give itself the tools it needs to punish citizens for attempting to hold it accountable. And the term “fake news” will continue to be abused by authoritarian governments to stifle dissent.
More well-intentioned lawmaking is resulting in terrible legislation proposals. France is looking to Germany for guidance for the first time in a long time, thanks to its Prime Minister’s desire to regulate “hate speech” on the internet. Edourd Philippe has apparently overlooked the disastrous roll out of Germany’s hate speech law, which has resulted in a steady stream of embarrassments since its inception.
During a visit to the National Museum of the History of Immigration, Philippe said he intends to fight racist and anti-Semitic content on social networks, to launch an Internet portal to inform and help victims of hate, racism and discrimination, and set up training sessions for teachers to manage and prevent offensive remarks in schools.
He also plans to set up a national response team to assist teachers and field workers confronted with conflict situations.
“French law should be amended to strengthen the obligations of detection, reporting and deletion of illegal content on the Internet,” he said in a speech.
[…]
In outlining his plans, Philippe said the government is considering following Germany’s lead with heavy fines for companies slow to react. He also mentioned the possibility of closing accounts with repetitive and massive dissemination of hate content.
France’s prime minister said he backed the publication of anti-Semitic essays by the author Louis-Ferdinand Destouches, also known as Celine, despite concern from the country’s Jewish community.
Edouard Philippe said the essays, published under the pseudonym Louis-Ferdinand Celine between 1937 and 1941, could not be ignored, though the publication would have to be carefully watched.
The January version of Philippe said anti-Semitic works could be published, accompanied by more speech — the companion publication of a “scientific style” explainer that would hopefully deter readers from assuming the French government or a majority of the French population supported the author’s views.
It seems more speech is no longer the answer. Philippe wants to directly regulate the internet, holding service providers responsible for user-generated content. If successful, France will enjoy a new revenue stream: hefty fines collected from social media platforms for failing to nuke content fast enough. Once this cash IV is hooked up to French coffers, demands for removal will increase, turn-time for removals shortened, and mission creep will set in.
Philippe expressed his concern about the perceived proliferation of hate speech with a statement that inadvertently supports arguments made by service providers about the impossibility of these content removal mandates.
“What annoys me is that nowadays, it seems easier to remove a pirated video of a football [soccer] game than anti-Semitic remarks.”
Interesting. It seems not all that long ago, government reps and the lobbyists who keep them well-maintained were complaining about how difficult it was to remove pirated content. Government officials tend believe removing pirated content should be as easy as removing child porn, even though one’s much easier to spot and has a database of known child porn to compare content to. With copyrighted content, it’s not always clear the stuff targeted is infringing, and issues not present in child porn — like fair use or public interest — complicate matters.
The problems with identifying targeted content are only exacerbated when platforms are tasked with identifying and purging things like “terrorist content,” “hate speech,” and “fake news.” None of these concepts are distinctly definable and a patchwork of contradictory laws makes compliance a logistical nightmare. What tends to happen is preemptive removal by platforms, which has resulted in the purging of satirical posts and content that is, at best, slightly offensive, rather than being the invective governments claim they’re targeting.
PM Philippe is making this push despite hate crime numbers continuing to drop in France. The Prime Minister offers only ethereal suppositions in support of his legislative desires.
Philippe said that although the number of hate incidents may have dropped in 2017 for the second year in a row, the statistics do not account for the “surge of hatred that is expressed daily on the Internet.”
You can’t quantify what you can’t clearly define. And if you can’t clearly define it, you probably shouldn’t regulate it. If France has a problem with hate speech, the corrective measures should target hateful citizens, not service providers. But it really shouldn’t target this speech with increased regulation. It should do as Philippe suggested only two months ago: greet hate speech with more speech, because this is the only route guaranteed to prevent the speech-targeting laws from becoming tools of government oppression.
This line of thinking can never be reinforced too often by public officials: the First Amendment is great but only if your speech doesn’t offend someone powerful. (via Adam Steinbaugh)
A California high school took matters into its own hands — not even waiting to see if powerful people were offended — and memory-holed both its physical and online student publication after a student wrote article about the relationship between art and activism made some parents take to Facebook to complain about “liberal propaganda.”
The article contained images found via Google searches, including one depicting Trump with a Nazi symbol on his head and another with a cop in Klan hood pointing a gun at a black child meant to represent Travon Martin. The following image comes from the Facebook post that started the backlash against the school.
The cascade of criticism on Facebook led to the mayor of the California town (Don Kendrick) to offer this explanation of how someone at the Bonita High School made the mistake of allowing students to engage in protected speech. [Line breaks added for readability, since apparently even mayoral announcements on Facebook must be delivered as a wall of text.]
First, I would like to thank everyone for your interest in this topic. Yes, I was furious when I first learned about this and I am still concerned. But I have had discussions with a number of people and would like to share those with you.
I would like to address two issues. One, the incident, and the other, the clubs at Bonita High School. First the incident. As most of you know, the city of La Verne Police Department has a very good, if not excellent, relationship with our school district, and especially Bonita High School, with a police officer assigned to the La Verne schools as a School Resource officer. This is a relationship that has been ongoing for over 25 years.
This unfortunate incident with the school newspaper has turned out to be a very bad judgment call by a new teacher, not an example of what normally goes on at the school. One Bonita teacher went to the police station on his own, talked to the Chief of Police, and apologized on behalf of what he said was 99.9% of the teachers at the school. Further, the Superintendent of Bonita Unified School District and the Principal of Bonita High School also went to the police station, met with the Chief, and apologized. Mistakes are made. The Police Department is fully committed to working with everyone in the school district, including the students, to make our community the best it can be. The Chief said it was an unfortunate mistake, but should not be used to judge the school district or the relationship that exists with the police department, and one that will continue to exist.
The second topic is the Bonita High School clubs. Did you know that there were over 60 clubs on the campus? Why so many? Because there is a wide variety of interests among the students. There is a club for everything you can think of, and even a club if there is no other club to belong to. Engaged students, doing things they like, leave little time to become engaged in destructive activities like we have recently witnessed in Florida. Every student at Bonita High School is expected to be engaged and involved in something. We are a better community when they are.
Thank you for your time.
Within this announcement are several concerning statements and assertions. First, the mayor is ready to throw a single teacher under the bus for allowing students to freely express controversial ideas. Second, the school is apparently so worried local officers might be offended that it took it upon itself to make sure local cops knew this was the work of one bad apple. Third, the mayor insinuates that approved school activities, if there’s enough of them, will either prevent school shootings (which I doubt is what he meant — no one refers to shootings as “activities”) or prevent students from engaging in activism (like the several protests/walkouts that followed the Parkland shooting). If it’s the latter, the mayor is encouraging the school to further divert students away from any outlet in which controversial ideas might be expressed. This is bad for students and bad for the First Amendment.
The thread of comments on the Facebook post that started this all is the expected hellhole of ignorance and calls for heads. The two Fox articles covering this both claim officers were offended by the publication but feature no direct quotes from anyone at the PD saying as much. As quickly as staff rushed off to prevent public servants from having their feelings hurt by a publication they likely never would have seen, it’s hard to believe any officers were offended until after they’d been apprised of the situation. It’s not like the PD applied pressure on the school. The school just simply abdicated its responsibility to its students in favor of preemptive feather de-rufflings.
To top it all off, the school’s statement on the issue is a non sequitur.
“There is a California Education Code that affirms the First Amendment rights of student newspapers,” Carl Coles, the interim superintendent of the Bonita School District, said in the statement. “The student journalist’s article does not represent the views of Bonita High School or the District.”
Great. But what the hell does that mean in this context? A school vanished away speech it find uncomfortable despite this “affirmation” of students’ rights. If the school had left the article live on the website and the physical publication untouched and simply informed parents, cops, and the mayor that it did not represent the views of the school, everything would have turned out much better than it has. Instead, the school has announced its subservience to local law enforcement and its willingness to silence students rather than overrule heckler’s vetoes.
The debate over gun control has reached new heights following the shooting at a high school in Florida. Every mass shooting prompts debate over the Second Amendment and access to guns, but this one, led by students whose classmates were killed, has more momentum than most.
Youth is wasted on the young, people say, as they note the steady decline in voter participation in younger demographics. This seems to imply more students should be involved in social and political issues, but this particular participation has been met with lots of ridicule and anger. In other words, it’s been greeted with hypocrisy, which is pretty much what we expect in heated political debates.
Nothing is more heated than the gun control debate. And everyone with an opinion is wrong. But it’s the youth that are the wrongest, and those bemoaning youthful antipathy aren’t responding very well to this sudden display of activism. Gun control-related walkouts have occurred in schools all over the nation, and students expressing their displeasure with their representatives are finding out firsthand how thin-skinned their representatives are.
A student at a Nevada high school has been punished by his school for comments he made to a Congressman’s office during a personal phone call.
[Noah] Christiansen told the Washington Post that during the walkout, his classmates passed around pieces of paper with phone numbers of legislators to call. Christiansen called the office of Rep. Mark Amodei, a pro-gun Republican, to complain, and reached a staffer in his office.
He told the Post that he said, “I believe bump stocks should be banned, the minimum age should be raised, and Congress people not already asking should get off their fucking asses and do something about gun control.”
Heated topic. Heated words. We’re all adults here, except for the student being punished by adults. Rep. Amodei’s office called the student’s school to complain about his use of the F-word. That should have been the end of it, and the only punishment handed out should have been public mockery of Rep. Amodei and his overly-sensitive staffers.
Of course, that’s not what happened. Christensen’s school responded by suspending him for “disrespectful behavior/language.” That’s just stupid. This language didn’t target the school, its staff, or fellow students. It targeted Congress in general, which is not exactly known for getting off its fucking ass and checking things off its To Do list.
Amodei defended his staffer and said no apology is necessary. The congressman said the situation was not a matter of shutting down the student’s First Amendment rights.
“I’m not apologizing because my guy accurately described what happened in the phone call,” he said.
In other words, this isn’t on me or my staffers. This is on the school because it chose to react this way to a completely unnecessary, completely retaliatory phone call made by a staffer who felt he didn’t need to put up with angry, sweary teens. But Amodei’s non-apology gets even worse. He also claims his office is in the right because it didn’t request a small parade of horribles to be inflicted on the student.
“He related the guy was vulgar,” Amodei said in a brief interview Monday. “He didn’t ask [the school] for any specific thing or beat the kid up. He just said ‘I wanted you know that this guy was really vulgar. We had a lot of calls and nobody else was,’ and that was it.”
Well, Amodei likes to dish it out but he sure can’t take it. He used plenty of vulgar language to describe his interactions with the Bureau of Land Management, according to audio obtained by USA Today.
“While I think the world of Mr. Ruhs, I’m not going to try and get between him and your deputy guy, whatever is going on with those two,” Amodei said he told Zinke. “With all due respect, I’ve been to enough rodeos to sense an issue there and let’s just move on.
“Nevada has suffered through a decade of s— BLM leadership,” he continued. “To put a strong successful leader in there for a net 18 months and then, for any reason, ship him, or let him leave to a position in Boise, is absolutely tone deaf.”
Northern Nevada’s lone congressman went on to decry “bulls—” legal provisions he said were cited by a Zinke subordinate in explaining why Amodei wasn’t told of Ruhs’ departure. That explanation, he felt, amounted to Zinke’s office indirectly telling him to “eat s—” over the incident.
That is awful. And to hear it coming from a respected pillar of the political community? It’s almost too much to bear. Someone should probably inform his office that Amodei is running around being “really vulgar.” Staffers shouldn’t be asked to beat up Amodei, probably. That would just make complainants sound as stupid as the Congressman. But his frequent vulgarity, aimed at prominent people in positions of great responsibility, shouldn’t go unnoticed. Neither should he and his office’s hypocrisy on the subject of vulgarities and who’s allowed to use them.
Amodei claims his office’s retaliatory act was meant to show the student words have consequences. They do. And Amodei is hopefully learning quickly that those in power are not immune from the consequences.
Italy is rolling out new laws to deal with “fake news.” The Italian government can’t define this term precisely, but apparently assumes it will know it when it sees it. And the rest of the country is encouraged to “see something, say something,” thanks to the government’s online portal which will allow brigaders and hecklers to cleanse the web of things they don’t like. Even if some of it stays up, those reported will possibly still have to spend some time interacting with government employees, which will mostly be a waste of everyone’s time.
And that’s just the bureaucratic side of it. This portal will link to law enforcement so Italy’s uniformed cyberwarriors can go harass citizens over alleged fakery the government can’t even clearly define. There’s nothing like settling discussions about factual misconceptions with shows of force from government reps.
Seeing as the problem will get a whole lot worse before it devolves into just another tool of government oppression, UN Special Rapporteur David Kaye has fired off a formal letter to the Italian government, asking it to nuke its plan to tackle fake news with armed officers and government mandates.
The letter [PDF] points out the Italian government is, in essence, criminalizing differences of opinion. That’s not going to keep it in line with internationally-recognized human rights.
The Human Rights Committee has emphasized that “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint. Moreover, international human rights law provides States’ responsibility to ensure an environment in which a diverse range of political opinions and ideas can be freely and openly expressed and debated. Freedom of expression also includes sharing one’s beliefs and opinions with others who may have different opinions. In the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, my mandate together with other regional freedom of expression experts stressed that the “human right to impart information and ideas is not limited to “correct” statements, and “protects information and ideas that may shock, offend, and disturb”.
[…]
In light of these standards, the Joint Declaration on Freedom of expression and “Fake News” has concluded that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “nonobjective information” are incompatible and should be abolished.
Further driving this point home, Kaye states the cold hard fact that laws like these, however well-intended, end up being vehicles of a particular brand of censorship.
The lack of clarity concerning how the Protocol would operate, coupled with the threat of criminal sanctions, raises the danger that your Excellency’s Government will become arbiters of truth in the public and political domain. Accordingly, I am concerned that the Protocol would disproportionately suppress a wide range of expressive conduct essential to a democratic society, including criticism of the government, news reporting, political campaigning and the expression of unpopular, controversial or minority opinions.
Every law that curtails speech ends up being abused by the government that put it into effect. There are no exceptions. As is noted here, laws like these allow the government to decide what speech is acceptable using vague guidelines that effectively allow it to suppress dissent and criticism. There’s no way to narrowly craft a law aimed at regulating a certain form of speech (“fake news”) that has zero chance of ever being universally and concisely defined.
Thought the whole Bob Murray / John Oliver story was over with the judge making it clear Murray had no case and preparing to dismiss the whole thing? It appears that Murray cannot let it go. As first spotted by YouTubing lawyer Leonard French, Murray (not his lawyers) sent the judge a letter whining about the whole thing (check out French’s video for a wonderful dramatic reading of the letter):
Or just go check out the letter yourself (kudos to French for getting the document and posting it and doing the dramatic read, shame on the West Virginia courts for not having web-accessible electronic records, and a plea to French to stop putting lame ugly watermarks on public documents). Of course, the reason the letter is public is that (1) parties are not supposed to talk to the judge about their case without telling the other side, and (2) parties are not supposed to communicate with the court directly, rather than via their attorneys. And, thus, the judge added Murray’s letter to the docket in the case, along with a bit of a benchslap:
This date the Court received the attached unsolicited missive from the Plaintiff, Robert E. Murray. As it does not appear Mr. Murray forwarded copies of the same to Defense Counsel, pursuant to Rule 2.9(B) of the West Virginia Rules of Judicial Conduct, the Court has copied and enclosed the correspondence herein and filed the original in the Court’s file.
Mr. Murray’s letter is an improper ex parte communication with the Court, therefore the request to reconsider the Court’s decision cannot and will not be entertained.
The Court respectfully requests Plaintiffs’ Counsel to advise Mr. Murray against future ex parte correspondence which could result in sanctions against the Plaintiffs in this matter.
In other words: don’t do this shit, Bob.
But, of course, the real joy is in Murray’s letter itself, which is absolutely hilarious. It starts off talking about how disappointed he is in the ruling, which, sure, is understandable but it’s totally improper to send a personal letter to the judge about it.
We are deeply disappointed to learn that you intend to dismiss our lawsuit against Home Box Office, Inc., Time Warner Inc., Mr. John Oliver, and others (collectively “Defendants”). We will appeal that decision in due course.
Right. If you (stupidly) decide to appeal this, your lawyers should appeal it in due course. Reaching out to the judge on your own is… not part of that “due course.”
The jobs of our 6,000 coal miners depend on me and my reputation.
Right, then maybe you shouldn’t have done a bunch of things that caused John Oliver and many others to mock you. And those mockable things include suing John Oliver for mocking you in the first place. Because the “harm” to your reputation was caused by you — not John Oliver. There is no right in this country not to have people mock you, and considering how frequently Murray seems to be flag waving about how proud he is to be an American, he might want to take some time to read the First Amendment of the Constitution.
So, if 6,000 coal miner jobs really depend on your reputation (which, also: citation needed), then perhaps the first thing you should do is improve your reputation (pro tip: sending a hilariously dumb letter to the judge in your case does the opposite of improving your reputation).
My name is on the Company, and I am the one who our 140 lenders, our utility customers, the regulators, and the public look to in order to keep these jobs. You have enabled the Defendants to further destroy our miners’ families. We write you today to inform you of the continued personal attack and harassment by the Defendants in this case.
If your lenders and customers bail because John Oliver made fun of you, perhaps there are larger issues at play. And, of course, Murray presents no evidence that any such lender, customer, regulator or anyone else has done anything to the company as a result of Oliver’s story, or the ruling in this case.
As for “continued personal attacks,” again I have to point you to the First Amendment. Personal attacks are protected. Making fun of you is protected. Telling you to “eat shit, Bob” is protected. This isn’t even close. Telling the court that just told you such things are protected that such “personal attacks” have continued is not a compelling argument. It suggests someone is acting like a sore loser without even understanding why he lost.
Just because you feel bad, Bob, it doesn’t make it illegal.
Indeed, just yesterday, the Defendants aired worldwide the enclose attack on the undersigned and our Compay, whereby John Oliver taunted us, once again, stating “Eat Sh-t Bob” and announcing that, once your order is issued, he will “gloat” and he will be “rubbing it in the face of the person that lost over and over again.”
Oooooooooooooh. He taunted you again. I mean, that’s positively Pythonesque, and we all know how King Arthur v. French Knight turned out, don’t we?
This clearly demonstrates the vindictiveness and intentional destruction that the Defendants have caused.
No. It means that you were mocked, had such thin skin that you sued in a case that you quickly lost, and thus were called out on filing a bad case (pretty mildly too, frankly). It doesn’t show “vindictiveness.” You know what shows vindictiveness? Suing a television comedian for reporting on your antics because you don’t like how you were portrayed. And, really, if anyone’s trying to “destroy” anyone, I think that honor must go to the person who sued someone for making fun of them, demanding “general damages,” “special damages,” “punitive damages,” “attorneys’ fees” and “a permanent injunction” against the person who made fun of you.
It shows that these attacks will continue in perpetuity, as a result of your order.
No, not as a result of the order. As a result of you doing silly, mockable things up to and including filing a lawsuit over someone expressing their opinion that things you did were silly and mockable.
I am a dying old man, but our employees will pay for your decision.
Nice baseless appeal to emotion. But, of course, if you’re dying, then how does your earlier statement about how all these employees relying on your reputation for their jobs make sense? Does that mean once you die they’re all out of work? If so, isn’t that a bigger threat to their jobs?
Further, since your ruling, we have been subjected to multiple insulting and threatening email and telephone messages, including these: “BOB, KISS MY A–“‘ “Hey Bob, I guess John Oliver f—ed you in your a–. You are a real evil piece of s–t”; “Consume defecation, Bob.”; “What an old and selfish c–t of a human being. You and your industry are no longer relevant and the entire world knows it.”; “Congratulations on having HBO make you look like a big fat lardass loser in court. Idiot.;” And “Ha ha you fat pig, you lost your lawsuit… burn in hell dr. evil.” This is a very small sampling of the flagrant and extremely damaging personal attacks that we continue to receive on a daily basis.
First off, Bob, thank you for sharing those. We never would have seen them otherwise. I’m assuming that Bob self-censored the dashes in the curse words, which is nice of him. But, really, the “consume defecation, Bob” statement is a really tremendous work of art.
Oh, and Bob, defamation is not “people made fun of me and I’m sad.” It requires false statements of fact made with actual malice. That’s not what’s happening. And you don’t even bother to allege that’s what’s happening, because it isn’t.
Accordingly, we respectfully request that you reconsider your decision to dismiss this lawsuit and allow this case to proceed on the merits.
What merits? There are no merits, which is what the judge has already made clear.
Indeed, this lawsuit is extremely important to our employees, who rely on Murray Energy and me for their continued livelihoods, and to our lenders, customers, and suppliers who depend on our integrity and performance. We cannot sit idly and allow our jobs and livelihoods to be destroyed by the cruel and baseless attacks of these defendants.
Wait. This lawsuit — in which a key part is about John Oliver quoting one of your employees writing “Eat Shit Bob” on a bonus check he was voiding over safety concerns — is “important” to your employees? You sure about that, Bob?
And, again, it’s not the people making fun of you that’s “destroying livelihoods.”
The ACLU of West Virginia’s Legal Director, Jamie Lynn Crofts, put out a nice statement in response to all of this:
?Other than the fact that Bob Murray?s case against John Oliver is a ridiculous attempt to quell speech by abusing our legal system, it really is the gift that keeps on giving. With the disdain Mr. Murray has shown for our constitution and our legal system, I?m not surprised that he would also improperly try to influence a judge in this way (or with such a hilarious letter). Unfortunately for Bob, everything John Oliver has said on his show was and continues to be protected speech. It is, in fact, legal for anyone to say, ?Consume defecation, Bob.’?
Last week the Tenth Circuit refused to let New Mexico’s anti-SLAPP statute be used in federal court in diversity cases. The relatively good news about the decision is that it is premised heavily on the specific language of New Mexico’s statute and may not be easily extensible to other states’ anti-SLAPP laws. This focus on the specific language is also why, as the decision acknowledges, it is inconsistent with holdings in other circuits, such as the Ninth. But the bad news is that the decision still takes the teeth out of New Mexico’s statute and will invite those who would abuse judicial process in order to chill speech to bring actions that can get into the New Mexico federal courts.
In this case, there had been litigation pending in New Mexico state court. That litigation was then removed to federal court on the basis of “diversity jurisdiction.” Diversity jurisdiction arises when the parties in the litigation are from separate states and the amount in controversy is more than $75,000 and the issue in dispute is solely a question of state law. Federal courts ordinarily can’t hear cases that only involve state law, but because of the concern that it could be unfair for an out-of-state litigant to have to be heard in a foreign state court, diversity jurisdiction can allow a case that would have been heard in state court to be heard by the federal one for the area instead.
At the same time, we don’t want it to be unfair for the other party to now have to litigate in federal court if being there means it would lose some of the protection of local state law. We also don’t want litigants to be too eager to get into federal court if being there could confer an advantage they would not have had if the case were instead being heard in state court. These two policy goals underpin what is commonly known as the “Erie doctrine,” named after a 1938 US Supreme Court case that is still followed today.
The Erie doctrine is why a case removed to federal court will still use state law to decide the matter. But sometimes it’s hard to figure out how much state law needs to be used. Federal courts have their own procedural rules, for instance, and so they are not likely to use procedural state rules to govern their proceedings. They only will use substantive state law. But it turns out that figuring out which a law is, procedural or substantive, is anything but straightforward, and that is the question at the heart of this Tenth Circuit case: was New Mexico’s anti-SLAPP law procedural, in which case the federal court did not have to follow it, or substantive, in which case it did? And unfortunately in this case, Los Lobos Renewable Power LLP v. Americulture, Inc., the Tenth Circuit decided it was “hardly a challenging endeavor” to decide that it was only procedural.
It based a significant portion of its decision on language unique to the New Mexico statute that differed from other states’ and emphasized its procedural operation:
Unlike many other states? anti-SLAPP statutes that shift substantive burdens of proof or alter substantive standards, or both, under no circumstance will the New Mexico anti-SLAPP statute have any bearing on the suit?s merits determination. See, e.g., Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013) (addressing a California anti-SLAPP statute that shifted substantive burdens and altered substantive standards).
It also looked to a New Mexico state supreme court decision that had used substantive/procedural language as part of its consideration of a different anti-SLAPP case:
The New Mexico Supreme Court?s recent decision in Cordova v. Cline, 396 P.3d 159 (N.M. 2017), supports our reading of the anti-SLAPP statute to a tee. … The court could not have made itself any clearer: ?While the Anti-SLAPP statute provides the procedural protections [the members] require, the Noerr-Pennington doctrine is the mechanism that offers [the members] the substantive First Amendment protections they seek.?
But picking out this language of the Cordova case to base its holding on suggests that the Tenth Circuit seriously misread what the New Mexico Supreme Court case was saying and all the effort it had made in its ruling to ensure that the state anti-SLAPP law would, in fact, have substantive effect in that case:
To curtail SLAPP suits, New Mexico enacted an Anti-SLAPP statute. Section 38-2-9.1. The Legislature enacted the Anti-SLAPP statute with the policy goal of protecting its citizens from lawsuits in retaliation for exercising their right to petition and to participate in quasi-judicial proceedings. Section 38-2-9.2. In order to accomplish this goal, the Legislature created expedited procedures for dismissing actions “seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting in a quasi-judicial proceeding before a tribunal or decision-making body of any political subdivision of the state,” Section 38-2-9.1(A), and allowing for the recovery of costs and attorney fees incurred in pursuing the dismissal, Section 38-2-9.1(B). ? We conclude that the Legislature intended to protect all public participation, whether it be in quasi-judicial proceedings or public hearings. The specific protection in the Anti-SLAPP statute for participation in public hearings before tribunals also comports with a national political ethos, that “encourage[s], promote[s], and purport[s] to protect citizens’ testifying, debating, complaining, campaigning, lobbying, litigating, appealing, demonstrating, and otherwise `invoking the law’ on public issues.” George W. Pring & Penelope Canan, “Strategic Lawsuits Against Public Participation” (“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport L. Rev. 937, 945-46 (1992); see also Rowe & Romero, supra, at 221-23 (summarizing a lawsuit filed in state district court against protestors who appealed city approval of Wal-Mart’s development plan to the district court and then the Court of Appeals and describing the lawsuit as a SLAPP because it was intended to discourage the protestors’ public participation in opposing the development).
It’s this language from the New Mexico Supreme Court opinion upholding the anti-SLAPP statute that should have informed the Tenth Circuit’s analysis, not the substantive/procedural language that it used in an entirely different context than in the case before the Tenth Circuit. The bottom line is that with an operative anti-SLAPP law public participation in New Mexico is protected from costly litigation. Without it public participation in New Mexico has no such protection. But the Tenth Circuit’s ruling means that New Mexico speakers only get the benefit of that protection if the people who try to sue them are local to New Mexico. If they instead have the misfortune of being sued by an out-of-state plaintiff able to assert diversity jurisdiction to get the case into federal court, they will suddenly be stripped of it.
The degree to which this deprivation obviously frustrates New Mexico legislative intent to protect speech, and leaves speech vulnerable to chilling abuse of process, shows just how substantive anti-SLAPP law really is, and thus just how out-of-step with the Erie doctrine the Tenth Circuit deeming it merely procedural really is. It’s also inconsistent with another part of the decision where the Tenth Circuit itself seemed to recognize the anti-SLAPP law’s substantive import.
As part of the same decision, the court also had to rule on whether it could even consider this interlocutory appeal of the district court’s denial to enforce the New Mexico anti-SLAPP statute. Due to a missed deadline by the defendant, the court had to engage in a meaningful analysis that included assessing just how pivotal it was for the court to rule on the anti-SLAPP applicability question now, and not after the full case examining the merits of the lawsuit had concluded. And the court found that it was indeed very important:
“[W]ere we to wait for this case to conclude in the court below by ordinary process, the statute?s sole aim would already be lost. Defendants would have already incurred the ordinary time and expense of litigation that the statute potentially grants them a right to avoid. Indeed, we can reverse the rulings of a hi court, but we cannot order away proceedings and legal fees that have already passed into history. Nor can we remand the case with instructions to ?do it again, but faster this time.?
This very same finding regarding the law’s effect, a finding that underpinned the Tenth Circuit’s ability to even consider the appeal at all, should also have led it to conclude that the anti-SLAPP law was in fact substantive, and thus applicable in federal court. Instead, however, when it came to considering the question of its applicability the court suddenly forgot about this significance. It based its decision on semantics, rather than substance, and in contravention of what the Erie doctrine at its root requires.
As Spain continues to expand its (anti-)speech laws, the rights of its citizens continue to contract. Not content with making it illegal to insult a cop or government officials, the Spanish government has decided to tackle hate speech and terrorism with the same ineptitude.
There’s no punchline here. People are being arrested and charged with speech having nothing to with promoting hate or terrorism. And this is in addition to people who’ve found themselves targeted by vindictive public servants for daring to publicly criticize their words or actions.
It’s gotten so bad Amnesty International — an entity that usually spends its time decrying the acts of dictators and brutal authoritarians — has felt compelled to speak up about Spain’s terrible speech laws. Mathew Ingram has more details at Columbia Journalism Review.
In a new report on the phenomenon, entitled “Tweet… If You Dare,” Amnesty International looks at the rise in prosecutions under Article 578 of the country’s criminal code, which prohibits “glorifying terrorism” and “humiliating the victims of terrorism.” The law has been around since 2000, but was amended in 2015 and since then prosecutions and convictions have risen sharply.
So, who’s been doing all this glorifying and humiliating? Well, it’s not supporters of terrorism. Instead, it’s musicians, artists, people telling jokes — pretty much everybody but actual terrorists or proponents of hate.
Among those who have been hit by the law are a musician who tweeted a joke about sending the king a cake-bomb for his birthday and was sentenced to a year in prison, and a rapper who was sentenced to three-and-a-half years in jail for writing songs that the government said glorified terrorism and insulted the crown. A filmmaker and a journalist have also been charged under the anti-terrorism law, and a student who tweeted jokes about the assassination of the Spanish prime minister in 1973 was also sentenced to a year in prison, although her sentence was suspended after a public outcry.
Don’t read too much into the into the post-outcry suspended sentence. Spain’s government is still busy ensuring satire, commentary, and anything else that might wander into the territory of offensive remains a criminal offense. Anything that has been walked back has been the result of public outcry. Amnesty National’s report “Tweet… if you dare” [PDF] notes hate speech and anti-terrorism speech law violations have resulted in 70 convictions over the past two years.
The student, (Cassandra Vera) who was arrested and sentenced for joking about a 45-year-old assassination, notes the government is still involved in acts of censorship that would be ridiculous if they weren’t backed by threats of jail time.
Vera expressed similar views after her sentence was overturned. She pointed to the recent censorship of a work at a Madrid art fair and the seizure, on a judge’s orders, of Fariña, a book about drug-trafficking in Galicia, as proof that something was seriously wrong with free speech in Spain.
“People shouldn’t have to be afraid of expressing their opinions,” she told the Guardian. “What happened with Valtonyc and Fariña and the art exhibition showed that freedom of expression is under serious attack. I think freedom of expression has been dealt an almost fatal blow in Spain.”
Amnesty International is demanding the law be repealed. It has done little to deter acts of terrorism or successfully counter hate speech. Instead, it has been used to target dissidents, activists, and others who criticize the government. Whatever terrorism happens to be addressed under the law apparently only considers certain acts by domestic terrorists to be worthy of enforcement. Content and communications glorifying foreign terrorist groups is usually ignored by the government. As its report points out, the speech laws enacted by the Spanish government violate the rights of its citizens.
By using these laws to criminalize lawful expression, the Spanish authorities are disregarding international human rights law and standards. The impact of Article 578 is devastating to individuals – ranging from hefty fines, to lengthy periods of exclusion from the public sector, to prison sentences.
But even beyond these sanctions, such misuse of counter-terrorism provisions leads people to engage in self-censorship for fear that they may be targeted. The criminalization of such a wide range of expression has a general chilling effect and can create an environment where individuals are afraid of expressing unpopular views, or even making controversial jokes.
The report also notes several other European countries are also beginning to curtail the rights of their citizens in their quest to target hate speech and international terrorism. Germany’s hate speech law roll out has been an unmitigated disaster and other countries like France and Italy seem all too willing to join Spain and Germany in killing satire, parody, and content they just don’t agree with. All of this is being done under the heading of “public safety,” but in reality, the public is no safer and will develop an unhealthy fear of their own governments.
Across the sea in the UK, offensive speech is still getting people jailed. An obnoxious person who trained his girlfriend’s dog to perform the Nazi salute and respond excitedly to the phrase “gas the Jews” is looking at possible jail time after posting these exploits to YouTube under the name Count Dankula. According to Scotland resident Markus Meechan, it was the “least cute” thing he could train his girlfriend’s dog to do, apparently in response to her constant gushing about the dog’s cuteness.
That April, soon after the video was posted, police knocked on Meechan’s door in Coatbridge, a town in North Lanarkshire, Scotland, he told Alex Jones. The officers told him that he was being charged with a hate crime and that the video could be seen as promoting violence against Jews. They told him to change his clothes, took pictures of his apartment and hauled him off to jail.
There’s is no doubt the video is offensive. But offended people have plenty of options to counter Meechan’s speech with their own. Unfortunately, the 2003 law being used against him has ensured this counterspeech is solely taking the form of testimony against Meechan.
During the trial, Ephraim Borowski, director of the Scottish Council of Jewish Communities, who lost family members during the Holocaust, said the video was “grossly offensive. It stuns me that anyone should think it is a joke,” he said, according to The Times.
“My immediate reaction is that there is a clear distinction to be made between an off-hand remark and the amount of effort that is required to train a dog like that. I actually feel sorry for the dog.”
Meechan says he has no hate for Jews and did it solely to annoy his girlfriend. It was recorded, which means it was meant to entertain YouTube users, some of which likely viewed the video as generally supportive of gassing Jews (which may have helpfully aligned with their own views on the subject). But speech can be offensive without being a hate crime, and the general criminalization of offensive subject matter isn’t doing much to curb actual racially-motivated criminal activity. All it’s really doing is ensuring UK courts receive a steady stream of defendants who’ve done nothing more dangerous than publicly display their questionable opinions and terrible senses of humor.
The YouTuber is now facing a year in prison because an unfunny prank came to the attention of local police. Prosecutors are busy trying to prove intent, which should be an uphill battle. Meechan has already issued a public apology, as well as a follow-up video further distancing his distasteful prank from any support for anti-Semitism. Nevertheless, prosecutors are alleging the sole reason for the recording was to cause fear and stir up hatred. That really doesn’t seem to be the case despite several bigots deciding the video’s release meant they should inundate the local Jewish community council with hateful messages.
Laws enforced in this fashion don’t instill a greater respect for rule of law or those who craft bad laws with good intentions. Fifteen years have passed since this law took effect and it’s certainly hasn’t shown much return on investment. Instead of stomping out hate, it’s being used to carve holes in speech protections, ensuring the merely offensive will be given the same punishments as those who actually incite hatred and violent acts.
