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Mike is the founder and CEO of the Copia Institute and editor of the Techdirt blog.

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Posted on Techdirt - 24 September 2021 @ 3:43pm

Texas' Unconstitutional Social Media Censorship Bill Challenged In Court, Just As Texas Joins The Legal Fight For Florida's Unconstitutional Social Media Bill

from the florida-and-texas;-what-a-pair dept

Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and "owning the libs" is way more important than the Constitution they swore to protect and uphold. As you'll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.

As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it's not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.

And, now, the same two organizations that sued to strike down Florida's law, NetChoice and CCIA, have similarly sued to strike down Texas' law.

At bottom, H.B. 20 imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies—and to present that speech the same way the platforms present other speech that does not violate their policies. Furthermore, H.B. 20 prohibits the platforms from engaging in their own expression to label or comment on the expression they are now compelled to disseminate. And in light of the statute’s vague operating provisions, every single editorial and operational choice platforms make could subject those companies to myriad lawsuits.

These restrictions—by striking at the heart of protected expression and editorial judgment—will prohibit platforms from taking action to protect themselves, their users, advertisers, and the public more generally from harmful and objectionable matter. At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation. In fact, legislators rejected amendments that would explicitly allow platforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.

Additional H.B. 20 provisions will work to chill the exercise of platforms’ First Amendment rights to exercise their own editorial discretion and to be free from state-compelled speech. H.B. 20 will impose operational mandates and disclosure requirements designed to prescriptively manage—and therefore interfere with and chill—platforms’ exercise of editorial discretion. In a series of intrusive provisions, H.B. 20 requires “social media platforms” to publish how they intend to exercise their discretion, document in excruciating detail how they exercise their editorial discretion over potentially billions of pieces of content, and operate inherently burdensome and unworkable individualized complaint mechanisms—all of which together work to compel or otherwise challenge the platforms’ countless daily uses of editorial discretion.

Notably, the lawsuit does not challenge the email filter provisions in the law, which effectively means that on December 2nd, if no one else tries to stop it, spam filters may be in violation of Texas' law. As Prof. Eric Goldman has noted, any spammer whose email is caught in a spam filter will then be able to sue the filter provider and seek statutory damages. Fun stuff!

Meanwhile, also this week, just to show how totally committed Texas Attorney General Ken Paxton is to unconstitutional restrictions on the free exercise of editorial discretion, he also filed an amicus brief in the appeal of the Florida ruling. A bunch of other states (Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana, and South Carolina) all signed on, but this is a Texas product. Also, it's hot garbage. It insists that these bills don't regulate speech -- when they very, very clearly do.

But the district court’s First Amendment analysis is riddled with errors. It veered off course from the outset by concluding that S.B. 7072 regulates speech, when that law instead regulates conduct that is unprotected by the First Amendment: social media platforms’ arbitrary application of their content moderation policies.

I mean, what? Of course, content moderation policies are protected by the 1st Amendment. It's basic editorial discretion.

The entire amicus brief tries to claim that editorial discretion is "conduct" and not speech -- and that would upend basically all 1st Amendment precedent. And if Texas actually got its way with this, then that would enable the government to regulate who could appear on Fox News and other media organizations, claiming that those demands are "conduct, not speech."

Nothing in S.B. 7072’s neutrality and disclosure provisions regulates the speech of Plaintiffs or the members of their trade associations—they “neither limit[] what [Plaintiffs or their members] may say nor require[] them to say anything.” FAIR, 547 U.S. at 60. Instead, at most these provisions regulate the conduct of Plaintiffs and their members: their arbitrary and blunderbuss content-moderation policies

This is... wrong. Requiring them not to moderate certain content (as the Florida bill does for political speech) is absolutely requiring them to associate with speech they may disagree with -- and such compelled association is a violation of the 1st Amendment. Did Ken Paxton actually graduate law school without learning this?

Like Florida did in its case, the Texas Amicus brief relies heavily on Rumsfeld v. FAIR. The district court in Florida rightly pointed out that FAIR does not apply here and is easily distinguished:

The Florida statutes now at issue, unlike the state actions in FAIR and PruneYard, explicitly forbid social media platforms from appending their own statements to posts by some users. And the statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites. This is a far greater burden on the platforms’ own speech than was involved in FAIR or PruneYard.

But, Texas insists otherwise -- and now we have to hope that the panel of Judges on the 11th Circuit recognizes the absolute garbage that is Texas' brief.

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Posted on Techdirt - 23 September 2021 @ 10:54am

Southwest's Bizarrely Antagonistic Lawsuit To Stop Consumers From Finding Better Deals

from the throwing-away-goodwill dept

This lawsuit is a couple months old, but I'm clearing out some older stories, and thought it was worth writing up still. Southwest Airlines is regularly ranked as a favorite of consumers. While it's generally relatively low cost as airlines go, it has kept up a reputation of stellar customer service -- contrary to the reputations of some other low cost airlines. However, earlier this year, Southwest not only decided to be particularly anti-consumer, but to go legal about it. The company decided to sue the site Skiplagged.

If you've never seen it, Skiplagged is a neat service -- effectively finding secret cheaper fares by exposing some of the hidden (stupid) secrets of airline fares. I discovered it years ago, after writing about some sketchy airline pricing tricks involving multi-city travel. The secret that Skiplagged realized is that you can often find cheaper flights by booking a multi-leg trip, and not taking all the flights. As Skiplagged sums it up: "As an example, a traveler who wants to go to San Francisco from New York would book a flight that is ticketed for NYC -> San Fran -> Seattle and end their travel once they arrive in San Fran and skip the leg to Seattle."

This can create some pretty massive details, and like those sketchy scam ads say "this one weird trick... that the airlines hate" except that it actually works. And now Southwest has decided to go to court over it.

Now, it's important to note that unlike many other airlines, Southwest requires people to buy tickets via its own site, and refuses to have its fares offered on aggregation sites. It also has a long and somewhat unfortunate history of suing websites who try to improve on Southwest fares in some manner. A decade ago we wrote about Southwest going after sites that help flyers track their frequent flyer mileage, and a few years back, we wrote about a ridiculous lawsuit against a website that alerted Southwest flyers if they could change their ticket to a cheaper option after they booked a flight (since Southwest has a no-charge for changes policy). Unfortunately, after a court refused to dismiss that lawsuit under Texas's anti-SLAPP law, leading the site to effectively agree to shut down permanently.

Here, Southwest is claiming a sort of double-whammy -- saying that Skiplagged is getting data on Southwest flights via another company (who Southwest is already suing), Kiwi.com, and using those fares to find the skipped leg cheaper options (also referred to as "hidden city" tickets).

Southwest claims this violates basically all the laws: trademark violations, page scraping violations, unauthorized sales, unfair and deceptive practices and a few others as well.

On June 8, 2021, Southwest wrote a letter to Skiplagged from Texas, explaining that Skiplagged was violating the Southwest Terms & Conditions by scraping and/or using data scraped from Southwest.com, promoting “hidden city” tickets, and using Southwest’s trademarked heart logo to advertise the sale of tickets on Southwest Airlines without its authorization.

Southwest explained that Southwest had “the exclusive distribution rights to sell Southwest flights to the general public through the Southwest Website” and never authorized Skiplagged to display or sell its fares, display its trademark logos, publish its flight or fare data, or to use the Southwest Website for or in connection with offering any third-party product or service—or use Southwest’s trademarks in doing so.

Southwest further explained that Skiplagged was inducing Southwest customers to violate the Southwest Terms & Conditions and/or Contract of Carriage. Southwest included a complete copy of the Southwest Terms & Conditions, and the details of registered trademarks.

While they may have (unfortunately) a legal leg to stand on, all of this should be seen as crazy. It's not trademark infringement, as it's providing factual information about the flights themselves. They're not selling counterfeit flights. The flights are real and they're really provided by Southwest. Scraping of such public, factual information, should never be illegal. Southwest is putting that information out there, and it doesn't get to control how it's used. And the fact that Southwest doesn't want people to get off a flight too early is Southwest's problem. They set the prices that way and the fact that some people have figured out how to game that system shouldn't be someone else's problem. It's only Southwest's.

Basically all of this is Southwest enabling all of this to happen, but then suing because people who figured out how to actually use their systems, their prices, and their information in ways that Southwest doesn't like. That should never be a violation of the law.

The whole thing seems to be an abuse of the legal process to try to stop people from taking advantage of Southwest's data and flights in a way that Southwest does in fact offer, but in a manner in which Southwest would prefer they not be able to. That should never be illegal. If Southwest doesn't want people doing those hidden city flights, then it should fix its pricing. Or suck it up. Not sue. And, as some are noting, this very lawsuit seems to highlight how Southwest's "customer friendly" persona is bullshit. Look how far the company will go to block its "valued customers" from actually finding the cheapest possible flights that Southwest does in fact offer.

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Posted on Techdirt Greenhouse - 22 September 2021 @ 12:00pm

Welcome To The New Techdirt Greenhouse Panel: Content Moderation At The Infrastructure Level

from the it's-not-the-same dept

Today we're launching our latest Techdirt Tech Policy Greenhouse discussion in which we bring in a bunch of actual experts to discuss and debate complex and nuanced subjects regarding tech policy -- this time about content moderation at the infrastructure layer. We're excited that we're doing it in partnership with our friends over at the Electronic Frontier Foundation (EFF)! Also, we're going to conclude this new series of posts on Techdirt with two virtual events. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live (though virtual!) audience (register to attend here). The following day, on October 7th, EFF and Techdirt will be hosting a smaller workshop event to take some of what we learned and discussed the previous day, and see if we can come up with more concrete steps and approaches to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

As you may recall, in the past we've had such Greenhouse discussions on broadband in the age of COVID, content moderation, and privacy.

The latest edition will again dip into the content moderation well, but will focus on a part of the discussion that is all too often forgotten (leading to potentially damaging consequences). Specifically, we'll be talking about content moderation not at the "edge" of the internet (i.e., the user-facing services like Google, Facebook, and Twitter), but at the infrastructure layers deeper in the stack. This could include content moderation via hosting companies, domain registrars, ad networks, payment processors, app stores, and much, much more. Since so much of the discussion (and anger) around content moderation focuses on those edge providers that everyone is familiar with, it seems that nearly all proposals tend to just focus on correcting perceived content moderation ills for end users. But, at the same time, it seems that most of the policy proposals we see would apply equally (if not more so) to infrastructure providers.

Some of this is by design.

The "original" content moderation debate on the internet revolved around copyright -- with the record labels (mainly) demanding ever more draconian regulations and standards to force content offline. However, as the technology evolved, we increasingly saw the legacy entertainment companies recognize that they could get more bang for the buck by targeting infrastructure intermediaries. They started to threaten ad networks and domain registrars for infringement that happened on websites that neither of those entities had power over.

Indeed, the biggest concern with moving moderation decisions down the stack is that most infrastructure players only have a sledge hammer to deal with these questions, rather than a scalpel. They can't remove just the "bad" content. They can only remove (or, at least threaten to remove) all service, which can wreak havoc on a site. And we've seen how that pressure can be used to extreme ends. People focus on more recent examples, but over a decade ago, caving to pressure from US government officials, Amazon and others dumped Wikileaks.

That said, the infrastructure companies are still private entities, and do (for the most part, with a few exceptions) retain the power to run their businesses how they wish -- including the right to refuse service to certain customers. And there are reasons why infrastructure providers may not just want, but actually need, the ability to do some amount of moderation -- for example ISPs have good reason to run spam filters for their customers, and there have been cases where serving companies have (understandably) wanted to pull down malware bot networks using their infrastructure.

In other words, there are a lot of nuances here, and plenty to discuss and debate and explore better paths forward.

Finally, we should note that, beyond partnering with EFF for this project, we are also supported by the grant we received last year from the Knight Foundation to explore this very topic, as well as sponsorships from Cloudflare, Internet Society, and Golden Frog.

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Posted on Techdirt - 22 September 2021 @ 9:42am

Unsealed Documents In Nunes' Family Farm's Lawsuit Against Ryan Lizza Raise More Questions About The Lawsuit Than They Answer

from the you-did-what-now? dept

The saga of Devin Nunes' family's lawsuit against reporter Ryan Lizza and Esquire Magazine got even more bizarre last week. Back in June, we had written about some heavily redacted documents in the case that suggested that Nunes' lawyer, Steven Biss, was playing some very dangerous games in order to try to keep the employees of the NuStar Farms (owned by Nunes' relatives) from testifying as to their immigration status. As you may recall, the only part of the lawsuit that was still going on were defamation claims regarding the implication that the farm might employ undocumented workers, which would be noteworthy, considering Devin Nunes hardline stance on immigration.

As we covered back in June, after first making it difficult to set up a deposition with the employees, when that deposition finally occurred, the lawyer for the employee recommended he take the 5th, at which point Biss (who was not representing the employee) paused the deposition for quite some time, before insisting that the employee would not take the 5th. From the filing:

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Still, much of the information remained redacted. Law professor Eugene Volokh filed a brief asking the court to unseal some of the documents in the case, and late last week the court agreed. So now we get to see a lot more, and as Elizabeth Dye at Above the Law points out, the new details show that this lawsuit "is even grosser than expected."

The newly unredacted documents highlight the evidence Hearst has found, through the discovery process that at the very least strongly calls into question the immigration status of employees of NuStar Farms. Considering that's the only issue left in the case, it seems quite incredible that the farm and Nunes' family would continue to push this lawsuit -- though, as other recent filings have shown, it's unclear how much Nunes' family actually knows about the lawsuit that was filed in their name. A failed deposition redaction notes that family members admitted to not knowing who was paying for the lawsuit, and that they weren't looking for any money in return (even though the lawsuit requests $25 million).

According to the filing:

In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was buttressed by their deposition testimony admitting they have not incurred out-of-pocket payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their document production of financial records indicating the same lack of payments to counsel for costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III, testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III Dep. 400:8-10.

Also, this:

Plaintiffs have had little involvement in the prosecution of their own case. See NuStar 30(b)(6) Corporate Rep. Tr. at 10:9-15:18 (corporate representative testifying that he never saw the 30(b)(6) topics and did not prepare); Lori Nunes Tr. at 185:3-22 (testifying that she did not review SSA records ordered to be produced to Plaintiffs); Anthony Nunes, III Tr. at 303:8- 308:11 (same); Anthony Nunes, Jr. Tr. at 97:13-100:15 (same); Lori Nunes Tr. at 117:23-124:9 (testifying that she did not know where information in interrogatory response came from but suspecting it came from counsel); see also Toni Dian Nunes Tr. at 86:10-89:17, 112:25-116:6 (testifying that she never saw subpoena directed to her and accepted by Plaintiffs’ counsel and that some records produced in response were not actually hers).

And yet the case pushes forward on the issue of the immigration status of the employees of the farm, and the formerly redacted, but now unsealed, bits of Esquire's filing are incredibly eye opening and would make most people question why this lawsuit is being fought in the first place. From the now unsealed filing:

To defend against those allegations, Defendants obtained in discovery from NuStar records concerning its hiring of workers. These include (i) USCIS Forms I-9 and accompanying employee identification cards for most current and former employees, and (ii) two "No-Match letters issued to NuStar by the U.S. Social Security Administration ("SSA")... Defendants also obtained from the SSA, pursuant to this Court's order... a chart indicating whether or not the Social Security Numbers ("SSNs") that the workers provided to NuStar matched the SSA's records...

Those documents demonstrate that the six subpoenaed NuStar employees—who were employed by NuStar before, during, and after the article was published, according to NuStar's verified response to Interrogatory No. 1, could have criminal exposure under 8 U.S.C. §1324c, and that their testimony may incriminate them. What follows is a small sampling of the reasons.

First, the SSA responded that the Social Security numbers reported by NuStar as associated with each of the subpoenaed employees does not match the SSA's records.... This authoritative, self-authenticating document from the United States Government confirms that the SSA has no record of having issued to these workers the SSNs that NuStar recorded at the time of hire.

Second—and consistent with this—NuStar received letters from the SSA in 2019 (for tax year 2018) and 2020 (for tax year 2019) notifying them that the majority of SSNs provided on their employees’ Forms W-2 did not match the government’s records. That is, in 2018, 20 out of 27 employees came back as a “no match,” and in 2019, 14 of 19 came back as a “no match.”... Those letters stated that NuStar could use a free online portal to learn which employees’ numbers did not match, and to thereafter follow up with the respective employees to correct the errors on the W-2 forms.... This is important if the employees are here legally, as otherwise the SSA will not be able to accurately account for their Social Security benefits. Tellingly, Plaintiffs did not produce any documents indicating they had done so.

Third, the Forms I-9, social security cards, and identification documents are, in many instances, insufficient and/or fraudulent on their face. This was on stark display in the (yet-completed) deposition of [REDACTED], the first NuStar employee to testify.

As AboveTheLaw notes correctly, having a No Match letter does not mean that an employee is an undocumented immigrant. But, it certainly raises some questions about their documentation. And, if the Nunes family's main concern about the Lizza article was it suggesting the farm might have employed undocumented workers (which, to be clear, the article never actually says -- it merely highlights how the industry relies on undocumented workers, and it is quite common for such undocumented workers to be employed on farms around the Nunes' farm), perhaps the dumbest move Nunes and family could make is to sue for defamation over those very claims. Because unlike an old Esquire article that doesn't actually accuse the farm of hiring such workers, now (1) it's definitely in the news again, and (2) there's more evidence coming, and what's been shown so far does not look good at all.

Indeed, the filing goes even deeper in raising serious questions about the documentation status of NuStar's employees.

On his I-9, bearing a date in 2007, [REDACTED] stated that he was a United States citizen.... However, before his attorney (from the Brown Winick firm in Des Moines, who met his client for the first time that day) advised him to invoke his Fifth Amendment right, [REDACTED] testified that he was not a United States citizen and, instead, was and is a legal permanent resident holding a government-issued green card.... This, of course, suggests [REDACTED] made a false statement under penalty of perjury on his Form I-9.

Moreover, Section 2 of the Form I-9 is not filled out by the employer, and the signature on the Form I-9 does not appear to match the signature on the produced 2017 Form W-4 for [REDACTED] .... This raises questions as to how [REDACTED], who does not read English, was able to complete the form without assistance, and whether someone at NuStar completed it for him without disclosing that fact as required on the form itself. These are questions Defendants’ counsel intended to explore, until [REDACTED] counsel from the Brown Winick firm instructed his client to assert his Fifth Amendment right....

Most significantly: The resident alien card that [REDACTED] proffered to NuStar in order to gain employment is, on its face, fraudulent. [REDACTED] proffered card states that his class of admission to the United States is “W16.” ... “W16” is limited to persons who entered the United States without inspection prior to January 1, 1982, and were subsequently granted legal permanent resident status. See Dep’t of Homeland Security, Immigrant Classes of Admission, https://www.dhs.gov/immigration-statistics/lawful-permanent-residents/ImmigrantCOA (last visited May 15, 2021); ... However, date of birth, as stated on his proffered card and as he testified, is [REDACTED].... It is impossible for [REDACTED] to have been granted permanent resident status under the W16 class of admission, as he was born almost three years after the cut off for that class.

If the entire case hinges entirely on whether or not Lizza had no basis to believe that the farm employed undocumented workers, this is... probably not the way to make that case.

Also unsealed was Steven Biss's response to this filing, claiming that none of the above matters:

The fact that the social security numbers reported by NuStar did not match the SSA’s records is irrelevant. Inclusion of a worker’s name on a no- match letter makes no statement about the worker’s immigration status. Mismatches can result from a variety of reasons, including typographical errors (misspellings), clerical errors, mis-transposition of a number, an incomplete W-4, mistakes by the SSA, name changes, fraud/identity theft.

There's also a lot of table pounding about how (1) the article is false and quotes were "fabricated" by Lizza, (2) that none of the documents suggest the employees are undocumented or face criminal exposure, (3) that the only "misconduct" was from Lizza and Hearst, and (4) all of this is intended to "harass" the plaintiffs. You can read the filing for yourself at the link above or embedded below, but to me they are wholly unconvincing. The filing also insists that (1) Biss and NuStar are not pressuring its employees to not take the 5th, and also that (2) they "will not assert the Fifth Amendment or refuse to answer any questions." That seems quite odd given that the one transcript that has been released certainly showed the then lawyer of the employee suggesting the employee assert his 5th Amendment rights.

Esquire and Lizza then responded with the now unsealed document suggesting that the court really ought to appoint "competent, independent counsel" to represent the employees of NuStar farms.

Eventually the court mostly sided with Hearst and Lizza, noting that there was no harassment here:

During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment.... Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions

Similarly, the magistrate judge seemed at least somewhat concerned about Biss's actions:

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The court, however, initially declined to appoint a lawyer for the employees, because Biss insisted that one had already been found for them, though he could not name her beyond "Jennifer." The hearing transcript is quite incredible on this:

THE COURT: However, I understand that in this circumstance, that Mr. Biss, or perhaps it's the Nuneses, have arranged to have another lawyer or lawyers appear on behalf of these witnesses. Is that the case, Mr. Biss?

MR. BISS: Yes, sir, it is.

THE COURT: All right. Who is it that you've arranged to have appear?

MR. BISS: I know her name is Jennifer. I don't know her full name, but I was involved in engaging her; but NuStar engaged her, so she -- and she is available.

THE COURT: What do you mean that she is available? For us to talk to now or just available for any of these depositions?

MR. BISS: She's available for the depositions, whenever they are scheduled.

THE COURT: Okay. I'd like you to figure out who that person is and notify the Court and notify opposing counsel of that today. I know you expressed some concern that whoever would be designated to represent these defendants would be -- I don't know if you used the word "harassed," but I don't -- encouraged to assert their Fifth Amendment rights, and I don't think there's -- I'm not worried about Iowa lawyers who are admitted to the bar being able to vigorously assert their clients' rights. I think if I were in Jennifer's position and someone who knew a lot more about the underlying case -- whether it was you, Mr. Biss, or someone from the defendants who knew more about the underlying documents and the potential jeopardy my clients might face -- was calling me to talk to me about that, I'm not sure I would consider that harassment. It might be somewhat welcome so that I can accurately -- I mean, effectively defend my clients in their depositions. So that's not a worry that I have.

Again, all of this is not how these things normally work, and it remains somewhat bizarre that Nunes' family is still moving forward with this case.

It's unclear what happened with "Jennifer" but a few weeks later, in early July, the court reversed course and appointed counsel to the employees:

On June 17, 2021, I entered an order declining to appoint counsel for six of Plaintiffs employees who are witnesses. Because of the distinct possibility that these witnesses may not comprehend the jeopardy they may face and because they may not be able to afford counsel, I conclude it is necessary to appoint counsel from the CJA panel for the witnesses. Therefore, I appoint John P. Greer of Greer Law Office in Spencer, Iowa to represent the employee witnesses. The prior order at 119 remains unmodified in all other respects. This Order appointing counsel is subject to Plaintiffs employees satisfying the Court of their qualifications for court-appointed counsel under 18 U.S.C. Section 3006A.

This case is certainly quite messy, but it remains difficult to see any way in which this case makes sense for the Nunes' family beyond as a harassment technique itself. It continues to retain all the hallmarks of a SLAPP suit, and serves as a strong reminder that Iowa needs an anti-SLAPP law and we need a federal anti-SLAPP law to go with it as well.

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Posted on Techdirt - 21 September 2021 @ 12:20pm

Mirror Crowdfund: Our New Paper On NFTs And New Scarcities

from the exploring-new-spaces dept

Over the last year or so there has been tremendous hype around the concept of NFTs (non-fungible tokens). In my experience so far, people tend to fall into one of three camps surrounding NFTs. There are the "true believers", who are obsessed with the space and believe it is going to change everything about creativity and culture (and, according to some, "ownership"). There are the skeptics, who insist that it's a scam or the new tulip-craze bubble, and that NFTs are helping to burn down the planet with wasted energy usage. Finally, there's a very large camp of people who insist that they just don't understand NFTs at all and have completely blocked out the possibility that they could matter. I've been following the whole concept for a while now and I put myself in a weird place, potentially straddling multiple camps. I think there is a lot of nonsense in the space, and jargon meant more to confuse than to help -- but at the same time, I think there really is something interesting in the potential of NFTs, though the real value may be in a different place than even NFT-boosters believe.

The thing that's interesting to me, mainly, is how NFTs have found a way to productize a new scarcity -- one that may be really interesting (even as many of the current uses are missing that). Long term Techdirt readers may recall the series of posts I wrote back in 2007, exploring "The Economics of Free," in which the core point was about understanding what was scarce, and what was not just abundant but infinitely available -- something I refer to as "infinite goods." One of the points raised in that series was how new infinite goods not only completely upended traditional business models, that they also created new scarcities, and the really interesting business models were in finding those scarcities and leveraging the infinite goods connected to them to make them more valuable.

At the time, many of the new scarcities I was talking about were things like time and attention. But NFTs are actually highlighting a new set of potentially interesting scarcities related patronage and support, which previously had been amorphous concepts but which can actually be quantified to some level today. At the very least, I think this presents some interesting possibilities that go way beyond the state of the current NFT market (which, no doubt, is filled with significant hype, fluff, and nonsense). Just because there may be some level of exaggerated frenzy around NFTs, which turns some people off, that does not mean we should completely ignore and dismiss some of the underlying ideas that make NFTs so interesting.

That's why today we're launching a crowdfund on Mirror.xyz, a decentralized publishing platform with built in crowdfunding tools, to write a deep-dive paper entitled Newly Finite Themes that will explore the ins and outs and details of NFTs. The paper is not going to be an unfettered boosterism of NFTs, nor will it be condemning the entire concept. The plan is to explore every aspect of NFTs -- including the the economic, legal, cultural, and (yes) environmental implications -- and produce a thorough paper that will highlight which parts of NFTs are actually interesting and have real potential. In some ways, this will be a follow up to my 2019 Protocols, Not Platforms paper that helped inspire Twitter's Bluesky initiative.

As part of this process, we want to experiment with the very technologies we'll be writing about -- something we are enabled to do by Mirror (and yes, to back the project on Mirror, you have to use ETH). When the paper is complete, it will be minted as an NFT. Backers of the crowdfund will get a token that will entitle them to some of the proceeds when that NFT is sold. In addition, backers who support us at a level above 1 ETH (up to a total of 15 such backers) will get a separate NFT showing their support for a protocols over platforms approach to the internet. Finally, Mirror has a very cool new feature, enabling the top three backers to be rewarded with individual NFTs commemorating their key role in enabling this paper, and giving them Executive Producer, Producer, or Associate Producer status for the paper -- though this is only available to those who back within the first few days of the crowdfund.

All of the details can be seen on our Mirror crowdfund page.

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Posted on Free Speech - 21 September 2021 @ 9:59am

Now Josh Hawley Is Threatening Google Over 1st Amendment Protected Expression

from the not-how-it-works-josh dept

What is it with annoying grandstanding Senators of both parties and their incorrect beliefs that they can bully private companies over 1st Amendment protected expression? Last week we wrote about Senator Elizabeth Warren's bogus threats sent to Amazon regarding the fact that Amazon is selling books with "misinformation" in them. Right as that was happening, it seems that Senator Josh Hawley decided to do something somewhat similar, in "demanding answers" from Google regarding Google's decision to reject ads from an anti-abortion organization.

This story got attention after the founder and President of the anti-abortion group Live Action, Lila Rose, posted a Twitter thread insisting that ads from her group were banned "at the request of abortion activists." Of course, if you look at the actual images that Rose posted, it's pretty clear that the decisions had nothing to do with ideological viewpoints on abortion, but rather concern about advertising sketchy medical interventions. Specifically, Live Action was trying to run an ad about an "abortion pill reversal treatment."

As the Daily Beast recently detailed, this "treatment" is extremely sketchy, totally unproven, and extraordinarily dangerous. From a Washington Post article about these treatments:

But when researchers attempted to carry out a legitimate study of whether these “abortion reversal” treatments were effective and safe, they had to stop almost immediately — because some of the women who participated in the study experienced dangerous hemorrhaging that sent them to the hospital.

On top of that, remember that a decade ago the DOJ hit Google with a $500 forfeiture for advertising foreign online pharmacies, so it's not at all difficult to see how Google is going to be extra careful regarding advertisements regarding sketchy "medical" interventions.

Hawley's letter ignores all of this and insists this is proof of Google's ideological biases in moderating its ads:

Recently, while attempting to run ads for a client in the Washington, D.C. metro area, Choose Life Marketing realized that these ads were not running, even though Google designated them as eligible to run. Worse, Choose Life Marketing was unable to obtain an explanation from your company. Notably, even a cursory investigation reveals numerous examples of Planned Parenthood advertising directly to internet users that it offers abortions, contrary to Google’s stated policies.

All of this is alarming enough on its own, and the situation has only continued to escalate. Notably, Lila Rose—president of the pro-life organization Live Action—reported on September 14 that your company had pulled the plug on Live Action’s advertising campaigns, citing “Google Ads policy.”

Hawley also claims (without any evidence) that, "This would not be the first time that political considerations have influenced your company’s ad eligibility decisions" misleadingly citing Google's warning to the Federalist regarding ads on its site. As we explained then, Google sends those warnings to tons of sites, including ours (which is why we no longer have any ads on our site). I'm still waiting for Hawley to speak up in defense of Google threatening to demonetize ads on Techdirt, but I get the feeling I'll be waiting a very long time. If Hawley can't grandstand and lie about the reasons why these decisions are made, what good is it to him?

Either way, even if Google were making these decisions for ideological reasons (again, there is no proof to support this), that is its 1st Amendment protected right. The 1st Amendment's right of association means that if you don't want to be associated with ads promoting a sketchy, potentially dangerous medical procedure, you don't need to be. For Hawley to imply otherwise is just yet another attack on the 1st Amendment, and makes him just as bad as Elizabeth Warren on the other side of the Senate chamber.

It sure would be nice if Senators from both parties actually understood what it means to protect and defend the Constitution, and how that includes the 1st Amendment.

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Posted on Techdirt - 20 September 2021 @ 10:44am

As We're Told That No New Social Media App Can Make It, TikTok Surpasses Facebook Downloads & YouTube Watch Time

from the huh,-look-at-that dept

While I am concerned about the power wielded by giant tech companies and am interested in creating more competition, I'm always a little perplexed by the arguments that people make that, somehow, the "big four" companies of Google, Amazon, Facebook, and Apple are so dominant that no new competitor can ever catch up to them. It's one thing to point to similar articles about Myspace that totally dismissed Facebook as a possible competitor to that platform, but it's another thing altogether to see new social media apps... actually doing pretty well.

TikTok really only launched in 2017 (yes, there were some predecessors, but what we now think of as TikTok was launched in 2017, and really only took off after purchasing Musical.ly in late 2018), by which point we were already told that Facebook and Google had locked down the market entirely. Hell, remember the original FTC complaint against Facebook didn't even mention TikTok? And then the amended complaint (after the initial one was tossed) barely mentions it and only does so to insist that it's somehow different.

But, last month it came out that in 2020, TikTok was downloaded more than Facebook. Now, you could maybe try to make the argument that this is because everyone already has Facebook on their phones, but it still is noteworthy. Perhaps even more noteworthy is another report noting that TikTok has overtaken YouTube in average watch time in both the US and UK.

That report does note that YouTube still has more viewers, and thus greater overall time watched, but on a per user basis, users are spending more time on TikTok than YouTube.

There can still be reasonable concerns about practices from the big companies, if they're shown to be suppressing competition. But it seems harder and harder to buy the line that it's "impossible" for there to be new entrants in the market these days. Because that's clearly not the case.

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Posted on Free Speech - 17 September 2021 @ 12:08pm

PETA Sues NIH And HHS Directors For Blocking Comments With 'PETA' And '#StopAnimalTesting'

from the that's-not-content-neutral dept

PETA is certainly not above filing some pretty ridiculous lawsuits, so I was initially skeptical when I heard that it had filed a lawsuit against the directors of the National Institutes of Health (Francis Collins) and Health & Human Services (Xavier Becerra) over Facebook keyword blocking. However, upon reading through the lawsuit, it seems pretty legit. At issue is that it appears that NIH has put in place a block list on Facebook and Instagram that blocks anyone from mentioning PETA and a surprisingly long list of words and phrases that are likely of interest to PETA.

If this sounds sorta somewhat similar to the lawsuits saying that the President can't block people on social media, well, perhaps that's because that lawsuit and this one both involve lawyers from the Knight First Amendment Institute at Columbia, who have specialized in getting government officials to stop abusing social media blocks to suppress speech. In this case, some PETA supporters were noticing that certain comments they were posting on the NIH Facebook and Instagram pages didn't appear to be showing up. So they FOIA'd the blocklist that NIH was using, and discovered it was pretty extensive... and not generally what you would call "content neutral" (which would be required under the 1st Amendment):

a. #stopanimaltesting
b. #stoptesting
c. #stoptestingonanimals
d. Animal(s), animalitos, animales
e. Chimpanzee(s), chimp(s)
f. Primate(s)
g. Marmoset(s)
h. Cats, gatos [i.e., Spanish for “cats”]
i. Monkey(s), monkies
j. Mouse, mice
k. Experiment
l. Test(ing), testing facility
m. Stop
n. PETA, PETALatino
o. Suomi,1 Harlow2
p. Hurt, hurting
q. Kill
r. Torture(s), torturing
s. Torment(ing)
t. Cruel
u. Revolting

That list is pretty revealing. I mean, it's not difficult to see how this came about. Not for nothing, but PETA folks can be a pain in the ass. Which seems to basically be by design. They like making a nuisance of themselves, and you can see how some administrator at NIH was getting sick of it and started coming up with words that would block their annoying comments. And that's fine for normal everyday private actors. But when it's the government, there's a problem. Especially when that list seems so clearly targeted. For something like this to survive 1st Amendment scrutiny it needs to be "content neutral." This is anything but.

Defendants’ practice of hiding comments containing words associated with animal rights advocacy, including the name of a well-known animal rights organization, is a viewpointdiscriminatory and content-based restriction on speech that infringes Plaintiffs’ First Amendment rights. It violates Plaintiffs’ right to speak in a public forum and their right to read the speech of others who have used blocked keywords in comments on Defendants’ social media pages.

Given the ruling in Knight v. Trump, the claims here seem pretty strong (in fact, potentially even stronger than that case). This isn't just blocking people, it's legit trying to bar discussions of certain topics NIH doesn't want discussed in open spaces that it is creating, as a government entity. PETA may be annoying (and at times frivolous and ridiculous), but this lawsuit seems exactly on point.

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Posted on Techdirt - 17 September 2021 @ 9:46am

Angry Anti-Masker Sues Joe Biden, Facebook, And Twitter Because His Social Media Was Taken Down For Disinfo

from the you-can't-be-serious dept

Another day, another truly silly lawsuit. The "Liberty Justice Center" and the Tyler & Bursch law firm -- both of which seem to specialize in filing ridiculous lawsuits -- have now filed a lawsuit on behalf of a disinformation-spewing anti-masker against Joe Biden, Surgeon General Vivek Murthy, Facebook, and Twitter... because Facebook and Twitter locked his account after he posted an image claiming (incorrectly) that "masking children is impractical and not backed by research or real world data."

The image, which you can find in the lawsuit, but which I will not post here, posts some stuff that is true but uninteresting (such as the fact that sometimes people wear masks improperly) with stuff that is out of context and misleading (such as that studies don't have conclusive answers yet about the effectiveness of masks for kids) to try to make a claim that masking kids is a bad idea. But, like so much misinformation, it's telling a story by cherry-picking a few points out of context. Actual credible sources have broken down why these claims -- repeated frequently by anti-maskers -- are basically bullshit. Yes, there remain some unknown things and inconclusive science (though the blanks will be filled in soon). But the really "scary" stuff about harming development are mostly bogus. Of course, this is the way most misinformation works: take things out of context that you can point to as true, pool them together with a few other things, slip in a few exaggerations, and claim a big picture, the implications of which are ridiculous and not supported.

That's what the graphic Justin Hart posted basically did. And, Facebook and Twitter both reasonably felt that it was spreading potentially dangerous misinformation about masks and children. So both services gave him a time-out. Facebook suspended him for three days for violating its community standards. Twitter locked his account for violating its rules.

Hart is suing Biden, Murthy and other government officials on the laughably bogus argument that the account suspensions were ordered by the US government. The argument is that because the White House did use its bully pulpit to get angry at Facebook for leaving up misinformation, that somehow makes the government responsible for the actions against Hart (even though those occurred before the White House statements). As we noted at the time, the White House's statements were pretty stupid and short sighted. But they did not, in any way, amount to evidence that the White House and social media were colluding to censor people. Indeed, the whole point of the White House's statements were that Facebook wasn't taking down accounts.

The claims in the case are, as expected, silly. First you get a state action claim.

Facebook and Twitter engaged in state action when they removed posts like Hart’s at the request of Murthy and Biden based on the viewpoint of those posts.

Facebook and Twitter worked in concert and/or conspiracy with Murthy and Biden to deprive Hart of his First Amendment right to Free Speech.

Murthy and Biden affirmed, authorized, encouraged, and/or facilitated Facebook and Twitter’s unconstitutional conduct of censorship.

Except, that's not what happened, at all. That's not how state action doctrine works. This is just silly.

Then, there's the claim that these companies violated Hart's free speech rights under the California Constitution. And, because every stupid content moderation lawsuit has to cite Pruneyard, so does this one. As a reminder, Pruneyard is a case about a shopping mall being required to allow speakers on the property, but the ruling and subsequent rulings have narrowed it down to the very, very, very specific circumstances of the Pruneyard Shopping Mall and basically nowhere else.

In Pruneyard Shopping Center, the California Supreme Court recognized that the suburban shopping center—even ones that are privately owned—are an “essential and invaluable forum for exercising” speech rights. 592 P.2d 341, 347 (Cal. 1979). The court reasoned that shopping centers are where most people “spend the most significant amount of [their] time in suburban areas where [their] needs and wants are satisfied” because “shopping centers provide the location, goods, and services to satisfy [their] needs and wants.”

And then the case misleadingly cites the other favorite, Packingham, which is limited to how the government cannot pass a law blocking people from the entire internet and has no impact at all on whether or not an individual service can kick someone off for violating terms.

The U.S. Supreme Court made a similar observation about the internet in Packingham, 137 S. Ct. at 1735. There, the Court compared social media to a “quintessential forum” for engaging in speech such as “a street or park.” It further found that the most important forum today for speech is “cyberspace—the ‘vast democratic forums of the Internet’ in general . . . and social media in particular.”

And with just those two barebones paragraphs, that ignore the realities of both cases, the lawsuit claims:

Because Facebook and Twitter provide an essential and invaluable forum for exercising Hart’s right to Free Speech under the California Constitution, they violated such right when they removed Hart’s posts and suspended his ability to speak on their platforms

Except, we've already done this and it's not how any of this works. As the 9th Circuit pointed out in the PragerU case:

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.

Notably, the Hart filing does not mention the PragerU ruling. Perhaps because it debunks every argument here.

There is another claim that is even dumber than those first ones. Count IV claims that Facebook and Twitter "committed promissory estoppel by not fulfilling their promise for Hart to use their platform for his business."

Facebook and Twitter made “a clear and unambiguous promise” to Hart that he could use their services to communicate and network with other Facebook and Twitter users

Except, no, they didn't.

Facebook and Twitter did not caveat this promise by announcing that they would censor speech opposing masks.

They absolutely did. Both services include terms of service that Hart agreed to, which make it clear that he can be suspended for violating community standards and terms of service, and may have content removed for basically any reason at all.

I can only imagine that Hart's very silly lawyers pulled out this laughable argument after looking at the infamous Barnes v. Yahoo ruling, in which someone got around Section 230 because an employee at Yahoo promised to takedown some content. The court basically said that once the company promised to do that, its failure to violated that promise and that took precedence over Section 230. But that was a direct promise from an employee. Hart totally misreading (if he read at all) the terms that he agreed to is not a promise to let him spew misinformation.

There are also the usual padding claims about "negligent interference with a prospective economic advantage" and "intentional interference with a contract" which have no chance. The only claim in the lawsuit that is actually reasonable (though not very interesting) is the claim against two government agencies -- Health & Human Services and the Office of Management and Budget -- for failing to respond to his FOIA request in the 20 business days required by law. Of course, as we well know, FOIA requests often take years, but you can sue after the 20 days to try to force the issue -- so that claim seems to be the sole legit claim here, but the only remedy would be expedited processing of his FOIA request and nothing else.

This lawsuit may be useful for fundraising campaigns and silly pandering about how much of a "victim" Hart is, but it's not a serious legal complaint and the courts are likely to treat it with exactly the level of respect it deserves.

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Posted on Free Speech - 16 September 2021 @ 12:00pm

Elizabeth Warren Threatens Amazon For Selling Books Containing Misinformation; Perhaps Forgetting The 1st Amendment

from the kinda-matters dept

We're going to have to do this again up front because I know how this is going to go over among some: even if you think Amazon is the root of all evil, and Senator Elizabeth Warren truly is the greatest Senator in the last century, that does not mean that she gets to ignore the Constitution. We had this issue earlier this year when Warren threatened to punish Amazon for its constitutionally protected speech, and now she's going even further. She has sent a letter to new Amazon CEO Andy Jassy to complain about the fact that there are some books on Amazon that have dangerous mis- and disinformation about COVID-19 and various treatments and vaccines. And, yes, I recognize just as well as you do how dangerous that kind of mis- and disinformation can be. But, whether you like it or not, that mis- and disinformation is almost certainly protected by the 1st Amendment. And Warren ignores all that and implies that Amazon hosting this material is potentially "unlawful." It's not and threatening Amazon for carrying it is a huge 1st Amendment issue.

This pattern and practice of misbehavior suggests that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale of inappropriate products—an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.

I mean, the Bantam Books case from 1963 is still good law, and presents a very similar situation, involving government officials strongly implying to a book distributor that certain books should not be distributed. The Court found that to be unconstitutional (even without a direct threat). In this case, Warren's letter even suggests illegality, which goes further than what happened in Bantam Books. In Bantam Books, the Court found that even though the government officials had no law enforcement capability, they were still clearly intimidating the distributor:

In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors prior to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case. The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went for beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extra-legal sanctions; they acted as an agency not to advise but to suppress.

That... sounds pretty much like what Warren did here with this letter. From her letter, which even calls out specific books she doesn't like:

Alarmingly, Amazon—the nation’s leading online retailer—and the company’s search algorithms appear to contribute to the spread of COVID-19 misinformation. During the week of August 22, 2021, my staff conducted sample searches on Amazon.com of pandemic-related terms such as “COVID-19,” “COVID,” “vaccine,” “COVID 19 vaccine,” and “pandemic.” The top results consistently included highly-ranked and favorably-tagged books based on falsehoods about COVID-19 vaccines and cures.

When staff searched for terms “COVID-19” and “vaccine,” the first result, presented prominently in the top left corner of the screen, was a book by Joseph Mercola and Ronnie Cummins called “The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal.” Dr. Mercola has been described as “the most influential spreader of coronavirus misinformation online.”11 Not only was this book the top result when searching either “COVID-19” or “vaccine” in the categories of “All Departments” and “Books”; it was tagged as a “Best Seller” by Amazon and the “#1 Best Seller” in the “Political Freedom” category.

Even if we think that Dr. Mercola is a dangerous grifter, that does not mean that the US government gets to ban his books. That's kind of important. And then Warren "demands" that Amazon change its algorithm, raising even more 1st Amendment issues (algorithms are protected speech as well)

Given the seriousness of this issue, I ask that you perform an immediate review of Amazon’s algorithms and, within 14 days, provide both a public report on the extent to which Amazon’s algorithms are directing consumers to books and other products containing COVID19 misinformation and a plan to modify these algorithms so that they no longer do so...

Perhaps even more ridiculous is that Warren relies on WHO claims at one point in the letter:

In February 2020, the World Health Organization declared an “infodemic” to describe the difficulty of finding reliable information about COVID19 in today’s media environment

That's true. But in February of 2020 the WHO was also telling people that masks didn't help and that there wasn't evidence to support that COVID was transmitted by aerosols. In other words, even if there was an "infodemic," the WHO itself helped contribute to it with some of its earliest claims. And that's part of the reason why the 1st Amendment is so important. We can agree that there are grifters, scammers, idiots, and ignorant fools pushing nonsense in books, but it's not the government's job to censor such information. And yet that's what Warren is doing -- and doing so by threatening an intermediary is even worse.

This is important not just if you hate Amazon, hate COVID grifters, and love Elizabeth Warren. Because if you think this setup is okay, then you similarly are supporting ignorant fools in Congress who are spreading disinformation themselves (and there are a bunch of them) pressuring Amazon to drop books that present good information about COVID treatments and prevention.

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Posted on Free Speech - 16 September 2021 @ 9:26am

8th Circuit's Bizarre Ruling In Devin Nunes' SLAPP Suit Against Reporter Ryan Lizza

from the wait,-what? dept

Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we've been writing a fair bit about the lawsuit Nunes' family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There's been more nonsense since we last wrote about it, but I'm kind of waiting on the judge to actually rule before I go into the details.

Still, if you'll recall, there were actually two separate lawsuits here. The one we've been writing about was filed by Nunes' family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it's there.

Based on the article’s presentation of facts, we think the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm’s use of undocumented labor. See Manzari, 830 F.3d at 889; Stevens, 728 N.W.2d at 827. In reaching a contrary conclusion, the district court relied on the location of the relevant facts in the article. The court determined that the facts about Nunes conspiring to hide the farm’s move and the facts about the farm’s use of undocumented labor were “scattered at disparate points” and thus not “juxtaposed.”

But defamation-by-implication claims, like defamation claims generally, must be analyzed by considering the article as a whole. Toney, 85 F.3d at 396. Although the Iowa court in Stevens posited a defendant who “juxtaposes a series of facts,” 728 N.W.2d at 827 (internal quotation omitted), we do not believe the theory is limited to situations in which the implication arises from, say, consecutive sentences. “It is well settled that the ‘arrangement and phrasing of apparently nonlibelous statements’ cannot hide the existence of a defamatory meaning.” Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Kapellas v. Kofman, 459 P.2d 912, 919-20 (Cal. 1969)). When a reader, “connecting the dots,” could reasonably arrive at the implication, the author may be accountable. Elias v. Rolling Stone LLC, 872 F.3d 97, 109 (2d Cir. 2017). Whether the “arrangement and phrasing” of facts creates a defamatory implication depends on the particular context; an intervening section break does not necessarily avoid liability.

The court also does a really bizarre analysis of how the article might be defamatory. This contradicts nearly every other ruling on what is and what is not protected opinion:

Nunes alleges that the article implies the existence of a “politically explosive secret” that he “conspired with others” to hide the farm’s use of undocumented labor. A conspiracy is an agreement that requires knowledge—here, knowledge that the farm employed undocumented labor and a knowing agreement to cover up that politically embarrassing fact. Yet the Congressman’s complaint says that he was “not involved” in the farm’s “operations,” had “no knowledge of who the dairy farm hired,” and thus “was not involved in any conspiracy or cover-up.” Whether Nunes knew about the farm’s hiring practices, including the potential use of undocumented labor, and whether he agreed with others to keep that information secret, are issues of verifiable fact. We thus conclude that the implication is “sufficiently factual to be susceptible of being proved true or false,” so it is not a protected opinion.

That seems like a huge stretch. What saves it (and kills the core defamation lawsuit) is the actual malice standard. Nunes, on appeal, tried to argue that the actual malice standard is wrong, and you kind of get the feeling the judges here agree, but feel obliged to live under it:

On appeal, Nunes suggests that the actual malice standard of New York Times v. Sullivan should be reconsidered,... but of course we are bound to apply it. Under that demanding standard, we agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.

And then it gets dumber. Note that they say that with regards to "the original publication." The court claims the same does not apply to Lizza's later tweets about the article.

The district court went further, however, and ruled that the complaint does not state a plausible allegation that Lizza acted with actual malice by republishing the article on his Twitter account after this lawsuit was filed. On this point, we respectfully disagree.

The court then claims that tweets are different from the original publication, which is a bizarre perversion of the single publication rule (that says that a single publication of an article can only count as a single defamation), and that each tweet can be a separate "publication." And then says that Lizza's tweets after the lawsuit was filed could meet the actual malice standard, since by that point Lizza was, in effect, on notice that Nunes felt the information in the article was false.

Nunes’s initial complaint was filed on September 30, 2019. The complaint alleged that the “strong defamatory gist and false implication” of the article was that he “was involved in, covered-up, used his office to cover up, conspired with others to conceal, or was aware of criminal wrongdoing.” The next paragraph of the complaint makes clear that the “criminal wrongdoing” to which Nunes referred was the farm’s alleged use of undocumented labor. The complaint denied that Nunes had any involvement in the farm’s “operations,” denied that there was a “secret” involving the farm’s move to Iowa and his alleged hypocrisy on immigration policy, and denied that he “was involved in, covered-up, . . . conspired with others to conceal, or was aware of criminal wrongdoing.”

Nonetheless, on November 20, 2019, Lizza posted a tweet with a link to the article. Lizza’s tweet stated: “I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.” As discussed, the complaint plausibly alleges that the article defames Nunes by implication.

Lizza and Esquire pointed out that this tweet is not even remotely republication (because it's not). And nothing in that tweet by itself can possibly be defamatory. But.. for reasons that I cannot fathom, the court felt otherwise.

Lizza and Hearst contend that Lizza’s tweet of a link to the original article does not constitute republication of the article. They cite Sundance Image Technology, Inc. v. Cone Editions Press, Ltd., No. 02-CV-2258, 2007 WL 935703 (S.D. Cal. Mar. 7, 2007), which held that providing links to previous publications on a website, without more, was not republication. Id. at *7. And other courts have concluded that “mere reference to an article,” In re Phila. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), or a “mere hyperlink,” Lokhova v. Halper, 995 F.3d 134, 143 (4th Cir. 2021), without more, is not a republication. But these decisions do not hold categorically that hyperlinking to an original publication never constitutes republication.

The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article. In November 2019, Lizza was on notice of the article’s alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his “strange tale” about “immigration policy,” and promoting that “I’ve got a story for you.” Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.

This is just wrong. It ignores basically all precedent on how the single publication rule works. The story itself has not been republished. It's the same story. The whole point of the single publication setup is that unless the story changes, all that matters is the original publication date. Reuter's chief counsel highlights how this is just flat out wrong:

The ruling is complete nonsense. It's not how this works at all. Just because Nunes claims the article is defamatory does not put Lizza on notice that it is false, or that pointing people to that article meets the actual malice standard of publishing something knowing that it was false or with reckless disregard for the truth. It seems clear that Lizza still stands by the story and believes that what's in there is true. So everything about this is screwy. The perversion of the single publication rule. The claim that actual malice can apply for any statement after the filing of the lawsuit. Even the elements for what is an opinion are kinda weird.

The likely end result of this is that Lizza now has to go through this process all over again in the district court, focusing on actual malice, and gets the case dismissed again, but that's a hugely expensive and time exhausting process.

Politico quotes law professor Chip Stewart noting just how weird all this is:

"It’s certainly a novel application of a couple of important libel doctrines, and a potentially troublesome one if the 8th Circuit’s ruling is allowed to stand," said Chip Stewart, a professor at Texas Christian University. "It’s an odd kind of bootstrapping argument. Nunes claims the underlying article is false. He sues over it. Lizza tweets the exact same story after the lawsuit is filed. And what was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story."

Politico also suggests that this ruling would open up the possibility that Nunes could sue anyone who retweeted the article, but this is almost certainly wrong. Here's what Gerstein wrote:

One curious aspect of the ruling is that it appears to open the door to lawsuits against anyone who tweeted or retweeted the original story with knowledge of Nunes' lawsuit, and to similar claims over members of the public or those with significant social media followings tweeting or retweeting stories after learning that the subject of the story is disputing it in some way.

Except, that shouldn't be true, because for everyone but Lizza (and Esquire), Lizza's article is 3rd party content, and (while people forget this), Section 230 protects users who share 3rd party speech. Remember, the law is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." So, all those other tweets should be protected under Section 230.

Still, this is a bizarrely dumb ruling that allows a clearly vexatious SLAPP suit to continue. Even if the district court (hopefully) tosses out the case again on summary judgment, this whole process is extremely wasteful and the ruling on the books in the 8th circuit is completely upending how the single publication rule works -- making it a dangerous place for defamation claims.

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Posted on Free Speech - 15 September 2021 @ 10:43am

Satire Site Gets Ridiculous Threat Letter From Baseball Team; cc's Barbra Streisand In Its Response

from the that's-how-you-do-it dept

The Popehat signal went up and it was for a good cause (even if it's ridiculous that it was needed). The satirical site "Takoma Torch," which is an attempt at being a sort of local The Onion for a suburb outside of DC, posted an article making light of the nearby town of Olney, Maryland and its new Cal Ripken Collegiate League baseball team. Playing off of the recent drama regarding the company OnlyFans, Takoma Torch's Eric Saul wrote up an amusing article about "OlneyFans." You can click through to read the story, but the opening gives you the gist:

Within hours of going live, “OlneyFans,” the website for Upper Montgomery County’s new Cal Ripken Collegiate League baseball team, crashed this week due to unusually high web traffic.

“We knew that starting a new baseball team in Olney would be popular, especially with males between the ages of 13 and 55,” said marketing director Brock Jacobs. “But when our site registration exceeded the entire population of Maryland after announcing a free footlong on opening day against Bethesda Big Train, we realized our huge oversight.”

There are a few more such paragraphs and it's somewhat amusing. Except, apparently, to the very, very foolish people who run the Olney Community Baseball Team who found someone who is apparently a real lawyer, Andrew Schwartz, to write one of the dumbest threat letters we've seen in a while. Schwartz, who specializes in business law, employment law, and real estate law seems to know fuck all about how free speech works.

The letter has some real whoppers in there.

Olney Baseball has learned that The Takoma Torch has circulated communications that use the name, image, or likeness of Olney Baseball in a false, misleading, and/or defamatory manner. For instance, on September 8, 2021, The Takoma Torch published an article entitled "OlneyFans Website for MoCo's New Baseball Team Crashes Due to Unusually High Traffic" (the "Article"). No one from or on behalf of Olney Baseball was contacted, interviewed, or consulted about the Article. The Article contains numerous false and misleading statements, and it misrepresents the Olney Baseball organization. For instance, and not by way of limitation, Olney Baseball: (i) does not have a website; (ii) the individuals purportedly quoted in the Article have no relationship with Olney Baseball and they are not in any way affiliated with Olney Baseball; (iii) the individuals quoted in the Article have no authority to comment or speak on behalf of Olney Baseball; and (iv) the Article references a purported logo for Olney Baseball; however, Olney Baseball does not have any logo at this time.

Talk about missing the joke. The letter goes on to talk about all the time and money they've wasted investigating this matter and demanding The Takoma Torch cease and desist "all activities, including, but not limited to, publication, dissemination, distribution, sharing, posting and all use of or reference to the Olney Baseball name, image, and likeness in connection with any article, post, communication, and/or comment in whatever medium and in any forum." They also demand the article be taken down and all the usual legal mumbo jumbo designed to scare people.

Thankfully, the Takoma Torch and Eric Saul seem to know enough not to be intimidated, and made public their response. It's too good.

Thank you for your recent submission of a satirical legal threat. Even though our writing team found it to be extremely hilarious, unfortunately, it did not technically meet our qualifications of containing fewer than 300 words and have a punchy headline, so we will not accept it at this time. Perhaps you could have used "Olney Makes History with First Baseball Team to Lack a Sense of Humor," or even "Lawyers Has Ball to Make Baseless Claims Against Satirical Baseball Story." Either one of these headlines would have been acceptable.

There's more, but the best part, by far, is the signoff.

Why, yes, that is a "cc: Barbara Streisand" which caused half the internet to alert me to it (Psst: Eric, for future reference, her name is now actually Barbra without the extra "a").

And, given how often I've seen this type story come up, it appears that the Streisand Effect is alive and well. Saul has said his traffic went up more than 10x, to the point that his hosting company even alerted him that his traffic was "booming."

Of course, some of the backstory behind all of this makes it even crazier. According to the Washingtonian, Eric Saul of the Takoma Torch knows the owner of the baseball team and had even done him favors in the past:

Saul said he was bewildered by the letter. For starters, he says, “The guy suing me is my friend!” Indeed, Jeff Schwaber, the managing partner at Stein Sperling, confirms that Saul and Tony Korson, the CEO of Koa Sports, an organization behind the team, have coached baseball together and that Saul designed the interior of Koa Sports’ facility for free. Korson called Saul about the article on Friday, Saul says, and he agreed to remove the original graphic for the story, which showed an artist’s rendering of the team’s potential field, and replace it with an aerial photo. “I thought that was the end of it,” he says.

Some thanks he gets for designing the interior of their facility for free!

Incredibly, rather than backing down, the lawyers at Stein Sperling seem to be doubling down. Again from the Washingtonian:

Schwaber says the problem, from his client’s point of view, is that the baseball team is a new organization whose name is being “deliberately confused” with a site known for adult content. But Takoma Torch is clearly a humor publication, I said. Doesn’t the precedent in the Supreme Court case Hustler Magazine, Inc., v. Falwell—which found that the First Amendment protected even offensive speech as long as “that speech could not reasonably have been interpreted as stating actual facts”—protect this sort of joke?

“Look, there is a lot of humor that’s protected speech,” Schwaber replied. “But there are also lines that get crossed.” For instance, he says, Washingtonian could not write an article that accused Schwaber of molesting children and be protected by labeling it satire.

Um. That's just dumb, Jeff. That's not how any of this works. This did not cross the line and it was clearly satire. Schwaber kept on going and said even more stupid stuff to the Washington Post:

“Of course we support the First Amendment and the right of the Takoma Torch or anyone else to use satire as a medium,” wrote Stein Sperling’s Jeffrey M. Schwaber in an email.

No you don't, Jeff. You sent him a fucking cease-and-desist that threatens litigation for his satire. So you do not support the 1st Amendment.

“Our concern is that our client has worked very hard to create an opportunity to bring a community oriented, children and family friendly baseball team to Olney, and now is faced with the challenges posed by having their new brand deliberately confused with an exploitative site filled with graphic and explicit content.”

No one is confusing anything, dude. Except you. Everyone got the humor. Except you. Either way, the Streisand Effect has claimed another victim.

Update: And... not surprisingly, it appears that the lawyers and the Olney baseball team realized that at some point you stop digging, and have agreed not to pursue legal action here:

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Posted on Techdirt - 15 September 2021 @ 3:18am

Mistrial Declared In Backpage Founders' Trial; After DOJ Ignores Judge's Rules Regarding What It Could Present

from the poisoning-the-well dept

As we noted recently, the trial of Backpage's founders finally started after years of legal wrangling. However, the judge has already declared a mistrial after the DOJ, in typical DOJ fashion, tried to ignore the judge's warnings against focusing too specifically on the specifics of sex trafficking alleged to have occurred on the site. Specifically, prosecutors repeatedly referred to child sex trafficking, despite the fact that there are no sex trafficking charges in the case (let alone child sex trafficking):

U.S. District Judge Susan Brnovich said that the cumulative effect of the child sex trafficking references made by prosecutors in opening statements and by witnesses for the government “is something that I can’t overlook and will not overlook.”

Before the trial, the judge concluded she would allow evidence showing that people were trafficked using the site, but would not allow prosecutors to linger on the details of the abuse suffered by victims.

“It seemed the government abused that leeway,” Brnovich said. The judge said one government witness testified about being raped more than once, which raises a “whole new emotional response from people.”

This is the thing that always seems to happen with Backpage. People insist that if they just demonstrate some of the (very real and very terrible) examples of bad stuff that happened, in part, via the platform, they don't have to meet the burden of actually proving the crime at issue happened. We've seen that repeatedly -- including in the comments to our last post about Backpage and in years of coverage about the company. People highlight bad (really awful) stuff that happened because people abused the platform, and then assume they can just skip all of the important steps regarding pinning the liability on the company (and its founders).

It's depressing, if not surprising, that it was apparently the DOJ's plan to try the same strategy in court, and it's good to see the judge put a stop to it.

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Posted on Techdirt - 14 September 2021 @ 4:24pm

Critics Of Patent Waivers Are Claiming They Were Right... Despite No Patent Waiver Actually Issuing Yet

from the say-what-now? dept

We were surprised, but pleased, when the US announced plans to support a patent waiver for COVID-19 treatments and vaccines (over Hollywood's strenuous objections). As you'll recall, the TRIPS agreement (an onerous, oppressive set of "intellectual property" rules that many countries have agreed to) includes a "waiver" process, in which the WTO will effectively waive international patent protection on certain patented items in an emergency situation. The COVID-19 crisis seemed to fit the exact intent of the waiver process, and yet there's been a lot of pushback from patent and copyright maximalists who hate the very idea of waiving copyright or patent monopoly rights on anything for any reason at all.

Many of those against the waiver insisted that their reason for being against the waiver is that it wasn't patents that were holding up vaccines and treatments, but larger supply chain issues. They ignore, of course, that some of those supply chain issues are also because of overly aggressive intellectual property laws, or that both things can be true. Either way, Michael Rosen, who insisted that a waiver was a terrible idea, has now penned a piece for The Hill insisting that his view has proved correct because the waiver process has done nothing to help deal with COVID-19.

Of course, the reason it's done nothing is because people like the author have been getting groups to protest the waiver and so it hasn't even been approved yet. I mean, the piece even admits that the problem here is not the waiver, so much as the slowness of the WTO in approving it.

... the WTO is uniquely unsuited to move quickly on the proposal given its bureaucratic and consensus-driven nature. Opposition to the waiver proposal in late July, primarily from the European Union (EU), has delayed further discussion until at least October, because “disagreement persisted on the fundamental question of what is the appropriate and most effective way to address the shortage and inequitable access to vaccines and other COVID-related products.” By the time the TRIPS waiver receives proper consideration, the Delta wave may have passed.

But... that's not an argument against the waiver. It's an argument for the WTO to get its shit together, and for people to stop trying to oppose the damn waiver.

The other two reasons Rosen gives are no better.

First, the suspension of intellectual property (IP) rights will not quickly deliver shots in arms in the developing world, as the past four months have amply shown.

No one is saying that's the only thing that needs to be done -- but, also, how the hell can you say that it won't deliver shots when the waiver still hasn't come to pass yet?!?

... generic manufacturers cannot simply flip a switch and begin producing doses; instead, they must master the formulation of complex compounds (some of which involve mRNA), and their medicines must undergo local regulatory scrutiny for safety and effectiveness.

Yeah. You know what would help them get the ball rolling so that they can get those processes up and running sooner? Not having to worry about bogus patent infringement claims.

And, of course, this kind of thing wouldn't be complete without a bogus claim of the great innovation incentive that patents bring.

Finally, the suspension of vaccine-related IP rights fundamentally undermines the global innovation regime that brought us these miraculous drugs in the first place — wildly effective vaccines developed in absolute record time.

That's bullshit. The incentive to produce these vaccines was not patents, but saving the damn world. Second, the first of those vaccines, from Moderna, was developed in just two days because Chinese researchers uploaded the details of the coronavirus and made it openly available to researchers, rather than locking it up. In other words, it wasn't locking down information with patents that got us this vaccine, it was the opposite.

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Posted on Free Speech - 14 September 2021 @ 12:12pm

Commentator Insists That Fact Checking Is An Attack On Free Speech

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

There are some really bizarre ideas out there -- and one that has popped up a bunch recently is the idea that fact checking is antithetical to free speech. We've seen a few faux "conservatives" arguing that fact checkers should be regulated and that they're not protected by the 1st Amendment. This is wrong of course. Fact checking is (1) speech, and (2) stating an opinion on the veracity of some other content. It's quintessential protected opinion.

But, the most bizarrely stupid version of this argument was published recently in the Hill, by columnist Armstrong Williams, in a piece entitled: Uninhibited Speech is the Ultimate Weapon in the Fight Against Misinformation. You might think from this title that he would support fact checking -- which is part of that "uninhabited speech." Instead, he seems to think it's an infringement on rights.

For too long, Big Tech has controlled what we say by imprinting into the minds of the masses a certain worldview. Big Tech has silenced dissenters, making those who dare to disagree with them outcasts. The “fact-checkers,” both manual and automated systems, review social media posts and censor them when they determine a post to be false or misleading. The very notion that a company would hire someone to fact-check private speech is outrageous. We should not tolerate lies, but it is not the job of a powerful few to label something as a “lie”; it is the job of the content consumer to do so. Giving a few entities the power to brand people as liars gives them disproportionate power to determine truth by labeling some lies as “fake news” but not others, according to their agenda. 

So... we should have uninhibited free speech... unless that speech is coming from a big tech company? Because that's no longer uninhibited.

Now, there is a legitimate point buried amidst all the muck here, noting that just because someone has done a "fact check" on a piece of content, does not necessarily mean that the fact check is accurate. But a fact check is, undeniably part of the "more speech" approach. Williams isn't mad about "fact checking." He's mad that he doesn't agree with the results of these fact checks. Indeed, he could have made a stronger point if he had argued not against fact checking (which is clearly speech), but what is then done with the results of those fact checks (though, again, moderation decisions by private companies are also protected expression). Either way, when you get to the crux of his argument, it's that companies who fact check don't deserve any free speech rights to do so.

Did we need fact-checkers to end the idea that slavery was “natural,” as Aristotle said? Did we need fact-checkers to guide our Founding Fathers’ hands in writing the Constitution? No, what we needed was the natural, unfiltered flow of ideas from one person to another.

And... some of that "natural, unfiltered flow of ideas" is someone fact checking the content. That's how the marketplace of ideas works. You can criticize the fact checkers and the end result of their fact checks. That's reasonable. Fact checkers often get stuff wrong. But to argue that their speech somehow impinges on someone's speech is nonsense.

It's really funny how much he wants to silence speech in favor of letting speech flow if he likes that speech. I mean, this paragraph is just pure nonsense:

Rational thought spread like wildfire without the need of social media, and irrational thought died with the few patrons who consumed it. The world was changed by the thoughts of a few ordinary people who dared to think. Of course, people disagreed, and some even became violent, but a person’s right to open his mouth and unleash volumes of unique ideas upon his neighbors should not be stifled by the vitriol that their thoughts create.

Apparently, a person's right to open his mouth should not be stifled unless that person is fact checking.

Does Williams have no principles at all?

Labels make it easy to destroy people. They shift burdens of proof to the party being labeled, making it impossible to peel away the label one is given.

Labels are speech, dude. If you disagree, you should speak up and explain why the label is incorrect, misleading or inappropriate. That is uninhibited speech. But fact checking and labels (and moderation decisions) are all speech in themselves.

We should all continue to express our thoughts honestly, unfiltered and uninhibited.

Unless you're a fact checker or someone who labels people in a way that Armstrong Williams does not like?

Every person should conduct his or her own research to determine whether something someone says appears to be true.

Again, unless you're a fact checker or someone who labels people in a way that Amstrong Williams does not like?

Each of us must consider the facts, connect the dots, and come to our own conclusions.

And, a fact checker is part of that discussion. No one says you have to believe everything a fact checker says.

Sure, we might get it wrong; everyone does that sometimes because we are human. But right always prevails over wrong, the truth overcomes fallacies, and good triumphs over evil.

Apparently, Williams believes this applies to everyone... except fact checkers.

What a bunch of censorial garbage.

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Posted on Techdirt - 14 September 2021 @ 9:27am

I Am Rupert Murdoch's Total Lack Of Shame: Now Demanding Intermediary Liability Protections For News Corp.

from the hypocrisy dept

Let's talk a bit about Rupert Murdoch. To his slight credit, in the early 2000s, he seemed to realize that the internet would be big for media. He also realized that he might be missing out. He went on an internet buying spree. It got to the point where Newsweek was praising Murdoch's "smart bets" on the internet. The cornerstone of Murdoch's digital empire was MySpace; a site that was once so dominant, the media insisted that no one could ever surpass it -- not even a dumpy little startup like Facebook.

We all know how that all turned out. Within a few years, people realized that nearly every one of Murdoch's internet ventures was a total and complete flop (often embarrassingly so).

Since then, it has seemed that Murdoch has been at war with the internet. The man who spent years using his various media properties to insist that we needed "less" government, and more "free market" wasted no opportunity to demand that the government step in and regulate, breakup, or tax the internet companies which out innovated Murdoch's News Corp. He's even been occasionally successful in getting governments to burden his competitors with ridiculous regulations.

Over the last few years, Murdoch and News Corp. have been one of the leading voices attacking Section 230. Murdoch seems consistently angry at anything deemed good for the internet. News Corp. has been lobbying against Section 230. Fox News' most popular host, Tucker Carlson, regularly (if consistently ignorantly) rails against Section 230. Trump's attacks on Section 230 in 2020 were completely consistent with Murdoch's views.

That's why we found it grimly ironic last week when an Australian court ruled that media companies could now be held liable for 3rd party comments on social media. This was an upside down version of Section 230 Down Under, that reached way beyond social media sites being liable. Instead, it made the news organizations that posted links on social media liable for the comments that came under them.

I joked that perhaps Murdoch would finally realize why Section 230 was important, and it did not take long for News Corp. to demand that the law be changed to protect... organizations like News Corp. from some 3rd party liability:

The ruling was "significant for anyone who maintains a public social media page by finding they can be liable for comments posted by others on that page even when they are unaware of those comments," News Corp Australia executive chairman Michael Miller said in a statement.

"This highlights the need for urgent legislative reform and I call on Australia's attorneys general to address this anomaly and bring Australian law into line with comparable western democracies," Miller added.

You don't say? You mean, it might be helpful if there were some sort of law? One that made it clear that intermediaries and media organizations should not be held liable for comments from random commenters? Someone should tell Tucker Carlson...

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Posted on Free Speech - 13 September 2021 @ 1:34pm

Court: Just Because An Anonymous Yelp Reviewer Is Mean, Doesn't Mean You Get To Unmask The Reviewer

from the anonymity-matters dept

I've never understood why so many doctors sue over bad reviews, but it just keeps happening. Dr. Muhammad Mirza has built up something of a reputation for suing people who leave bad reviews on Yelp -- and has been successful in stifling speech:

Dr Mirza says he's already won or reached settlements with three reviewers, forcing them to take down the false review and pay an undisclosed amount of money.

As that article notes, he was able to get courts to force Yelp to turn over the names of anonymous reviewers in the past, and it appears that has emboldened him to continue suing reviewers.

However, in one of his more recent cases, thankfully, a court has pushed back on the unmasking attempt. This was yet another case where Dr. Mirza had to go to court against Yelp to try to get the company to unmask an anonymous reviewer who wrote:

“Worst experience I’ve ever had! Woke up looking like a monster!!! Cheap product and he’s absolutely not experienced nor does he care!!!!!”

As Yelp pointed out to the court, this statement clearly is not defamatory as there are no statements of fact that can be proven true or false -- it's all opinion. And, thankfully, anonymous speech is protected under the 1st Amendment. In a recent ruling in NY the court agreed and rejected Dr. Mirza's attempts to unmask that reviewer.

The ruling is pretty short, but worth reading. It notes the importance of protecting anonymous speech. That does not mean that anyone who is anonymous can get away with saying anything, but there is a reasonably high bar for unmasking such speech:

Anonymous Internet speech is protected by the First Amendment. See In re Anonymous Online Speakers, 661 F.3d 1168, 1173-77 (9th Cir. 2011); accord Rich v. Butowsky, No. 20 Misc. 80081, 2020 WL 5910069, at *3 (N.D. Cal. Oct. 6, 2020). Anonymous speech “is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue.” Anonymous Online Speakers, 661 F.3d at 1173; accord Butowsky, 2020 WL 5910069, at *3. Courts in the Ninth Circuit have required pleadings to meet a variety of standards before requiring disclosure of an anonymous speaker’s identity. Anonymous Online Speakers, 661 F.3d at 1175-76 (collecting cases) (noting that some cases require plaintiff to make a prima facie showing of its claim, that others rely on a motion to dismiss or good faith standard, while others rely on a standard somewhere between the motion to dismiss and the prima facie standard). Plaintiffs argue the Court should apply the First Amendment standard set forth in Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), and Yelp does not object to application of the test. Because Highfields is persuasive on this issue, it will be applied. See Butowsky, 2020 WL 5910069, at *3 (applying the First Amendment standard put forward by the parties); see also Music Grp. Macao Commercial Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 983 (N.D. Cal. 2015) (concluding Highfields provided the correct standard among “the developing tests in the area of anonymous online speech,” where challenged speech was (1) derogatory statements about a corporate official and (2) criticism of plaintiffs’ business).

Under the Highfields test, a party seeking enforcement of a subpoena must first make out “a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff.” Highfields, 385 F. Supp. 2d at 970. The Ninth Circuit has characterized this as a requirement for the plaintiff to establish a prima facie case for its claims. Anonymous Online Speakers, 661 F.3d at 1175. If a plaintiff successfully makes a prima facie case, the court must next “assess and compare the magnitude of the harms that would be caused” to (1) the plaintiff’s First Amendment interests and (2) the defendant’s commercial interests. Highfields, 385 F. Supp. 2d at 976, R&R adopted, 385 F. Supp. 2d at 971. If such an assessment reveals that disclosing the defendant’s identity “would cause relatively little harm to the defendant’s First Amendment and privacy rights,” but is “necessary to enable [the] plaintiff to protect against or remedy serious wrongs,” then the court should allow the disclosure.

In this case, the initial complaint fails to meet the standard of claiming defamation.

WHEREAS, the Complaint’s defamation claim arises under New York law.1 The elements of a cause of action for defamation are: “(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se.” Braunstein v. Day, 144 N.Y.S.3d 624, 625 (2d Dep’t 2021) (internal quotation marks omitted). Statements of opinion are not actionable, as “[a]n opinion cannot be proven false and therefore does not give rise to liability for defamation purposes.” Gottwald v. Sebert, 148 N.Y.S.3d 37, 47 (1st Dep’t 2021). Statements must be viewed in context, and where a communication has a “loose, figurative or hyperbolic tone” that “suggest[s] to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with [a] plaintiff[],” that statement is one of opinion. Torati v. Hodak, 47 N.Y.S.3d 288, 290 (1st Dep’t 2017) (internal quotation marks and alterations omitted). Courts must also be mindful that “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” Id. (internal quotation marks and alterations omitted).

WHEREAS, Plaintiffs have not made a sufficient showing of a prima facie defamation claim under New York law, as the Review, read in context, would be perceived by a reasonable person to be nothing more than a matter of personal opinion as to the quality of Plaintiffs’ products and services. New York courts have consistently declined to find anonymous reviews analogous to the Review actionable for purposes of defamation. See id. (concluding that negative comments anonymously posted on consumer review websites, describing plaintiff as a “bad apple,” “incompetent and dishonest,” and a “disastrous businessman” were not actionable); Woodbridge Structured Funding, LLC v. Pissed Consumer, 6 N.Y.S.3d 2, 3 (1st Dep’t 2015) (finding online review claiming defendants “Lie To Their Clients” and “will forget about you and . . . all the promises they made to you” non-defamatory); Sandals Resorts Int’l Ltd. v. Google, Inc., 925 N.Y.S.2d 407, 410-11 (1st Dep’t 2011) (email criticizing plaintiff’s operations in Jamaica, despite containing specific factual allegations, was still a non-actionable opinion); see also Mirza v. Amar, 513 F. Supp. 3d 292, 299 (E.D.N.Y. 2021) (rejecting Plaintiff Mirza’s claims that a separate statement similar to the Review was defamatory).

And, importantly, the review did not have statements of fact, as it was clearly all opinion:

Plaintiffs next argue that two of the Review’s claims -- that Mirza is “not experienced” and uses “[c]heap” products -- are actionable statements of fact. This argument is unpersuasive because where “some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a nondefamatory meaning, grounded in opinion.” Woodbridge, 6 N.Y.S.3d at 3. Because Plaintiffs have not made a prima facie case of defamation, their request for the identity of the John Doe defendant is improper.

I understand that it sucks to get negative reviews online. And, that not all online reviews are truthful. But that does not mean you get to automatically uncloak anonymous critics, nor does it mean you get to sue them for defamation.

In the meantime, kudos to Yelp for fighting for the rights of its reviewers, rather than just rolling over and handing out the info like lots of sites might do.

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Posted on Techdirt - 13 September 2021 @ 10:42am

Florida Presents Its Laughable Appeal For Its Unconstitutional Social Media Content Moderation Law

from the disney-exempt! dept

Now that Texas has signed its unconstitutional social media content moderation bill into law, the action shifts back to Florida's similar law that was already declared unconstitutional in an easy decision by the district court. Florida has filed its opening brief in its appeal before the 11th Circuit and... it's bad. I mean, really, really bad. Embarrassingly bad. I mean, this isn't a huge surprise since their arguments in the district court were also bad. But now that they've had a judge smack them down fairly completely, including in terribly embarrassing oral arguments, you'd think that maybe someone would think to try to lawyer better? Though, I guess, you play with the hand your dealt, and Florida gave its lawyers an unconstitutionally bad hand.

Still, I'd expect at least marginally better lawyering than the kind commonly found on Twitter or in our comments. It starts out bad and gets worse. First off, it claims that it's proven that social media platforms "arbitrarily discriminate against disfavored speakers" and uses a really bad example.

The record in this appeal leaves no question that social media platforms arbitrarily discriminate against disfavored speakers, including speakers in Florida. The record is replete with unrebutted examples of platforms suppressing user content for arbitrary reasons. E.g., App.891 (Doc.106-1 at 802) (Facebook censoring The Babylon Bee, a Florida-based media company, for obviously satirical content). When caught, platforms frequently cast these decisions off as “mistakes.” E.g., App.1693 (Doc.106-5 at 201). But systematic examinations show that platforms apply their content standards differently to content and speakers that express different views but are otherwise similarly situated, all while publicly claiming to apply those standards fairly. See App.999, 1007, 1183 (Doc.106-2 at 14, 22; Doc.106-3 at 17). There are many examples in the Appendix, and even that list is hardly exhaustive.

Except that at scale, tons of mistakes are made, so yes, many of these are mistakes. And others may not be, but it is up to the platform to determine who breaks the rules. But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service. So even if there were proof of "discrimination" here (and there is not), it's not against the law.

From there it just gets silly:

Undoubtedly, social media is “the modern public square.” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). In S.B. 7072 (the “Act”)...

Generally speaking, citing Packingham is a demonstration for support of your plan to force private actors to host speech shows you have totally misunderstood Packingham and are either too ignorant or too disingenuous to take seriously. Packingham is about preventing the government from passing laws that remove full internet access from people. It does not mean that any private company has to provide access to anyone.

The argument that Florida's law is not pre-empted by Section 230 is nonsense. Section 230 is clear that no state law can contradict it and do anything to put liability on private website operators (or users) regarding the actions of their users. But that's exactly what Florida's law does.

As the District Court tacitly acknowledged, the only part of that statute that could possibly preempt the Act is Section 230(c)(2). But that provision serves only to absolve platforms of liability when they remove in good faith content that is “objectionable” within the meaning of Section 230(c)(2). That leaves myriad ways in which the Act can apply consistently with Section 230(c)(2). For example, the Act and Section 230 can peacefully coexist when a social media platform fails to act in “good faith,” when the Act does not regulate the removal or restriction of content, or when a platform removes unobjectionable material.

This is disingenuous to downright wrong, and completely ignores the interplay between 230(c)(1) and 230(c)(2) and, notably, the fact that nearly every lawsuit regarding moderation has said that (c)(1) protects all moderation choices, whether or not they are "good faith." And Section 230 clearly also pre-empts any attempt by a state to ignore moderation that is protect by (c)(1). Florida's lawyers just ignore this. Which is kind of stunning. It's not like the lawyers for NetChoice and CCIA are going to ignore it too. And they can point to dozens upon dozens of cases that prove Florida wrong.

The 1st Amendment argument is even worse:

Plaintiffs are also unlikely to succeed on their claim that the Act violates the First Amendment on its face. Most of the Act is directed at ensuring that social media platforms host content in a transparent fashion. For example, the Act requires non-controversial, factual disclosures, and disclosure requirements have long coexisted with the First Amendment. Even the portions of the Act that regulate the manner in which platforms host speech are consistent with the First Amendment. When properly analyzed separately from the Act’s other provisions—and from the extraneous legislative statements on which the District Court primarily relied—these requirements parallel other hosting regulations that the Supreme Court has held are consistent with the First Amendment. E.g., Rumsfeld v. FAIR, Inc., 547 U.S. 47, 63 (2006). The Act’s hosting regulations prevent the platforms from silencing others. They leave platforms free to speak for themselves, create no risk that a user’s speech will be mistakenly attributed to the platforms, and intrude on no unified speech product of any platform. These requirements are little different from traditional regulation of common carriers that has long been thought consistent with the First Amendment.

The reliance on Rumsfeld v. FAIR is quite silly, and the few people who have brought it up also tend to look quite silly. This is not even remotely similar to the Rumsfeld situation, which was very narrow and very specific and cannot be extended to apply to an entire social media platform. And to just sort of toss in the idea that social media is a common carrier -- when they do not meet (at all) the classification of a common carrier, and have never been deemed a common carrier -- is just boldly stupid.

There's more, of course, but those are the basics. You never know how a court is going to decide -- and perhaps you get a confused and persuadable judge (there are, unfortunately, a few of those out there). But, this is really weak and seems unlikely to stand.

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Posted on Techdirt - 13 September 2021 @ 9:31am

Malwarebytes Conclusion Shows Section 230's Best Feature: Killing Dumb Cases Before They Waste Everyone's Time And Money

from the 230's-procedural-benefits dept

A few years ago, Professor Eric Goldman wrote an important paper, explaining how Section 230 is better than the 1st Amendment. The key part of the argument is that if you treat Section 230 as a rule of civil procedure that kicks out frivolous and wasteful cases quickly, you realize how important it is.

Last month, a federal district court in California dismissed Enigma Software's high profile lawsuit against Malwarebytes. You may have heard about this case. We've been covering it for years, and it even got some (dubious) attention at the Supreme Court, regarding Section 230. Enigma didn't like that Malwarebytes (and others) found Enigma's "SpyHunter" software to be sketchy itself and started suing. Malwarebytes initially won on Section 230 grounds, pointing out that its opinions on what is and what is not spyware is a moderation choice -- in this case protected by Section 230's rarely used (c)(2)'s immunity for content that the provider deems "otherwise objectionable."

Unfortunately, the 9th Circuit reversed that ruling with a very weird opinion that seemed to contradict its own previous precedent. In that ruling, the 9th Circuit carved a new hole in (c)(2) arguing that you could lose 230 protections if there was an argument that the decision to block content (or call something spyware) was done "for anticompetitive reasons." From the ruling:

We hold that the phrase “otherwise objectionable” does not include software that the provider finds objectionable for anticompetitive reasons.

This ruling was appealed to the Supreme Court who declined to hear the case, though allowing Justice Clarence Thomas to spew some unfettered unbriefed nonsense about Section 230.

Either way, that sent the case all the way back to the district court... where it was dismissed anyway because calling something spyware is protected opinion.

Like in Asurvio LP, Enigma has not pleaded that Malwarebytes’ alleged labels are verifiably false rather than just subjective opinions. Enigma’s allegations that users view statements categorizing Enigma’s programs and domains as “malicious,” “threats,” and PUPs as statements of fact rather than subjective opinions are not supported by the facts presented. The allegations ignore that users of Malwarebytes are aware of why it opines that a given software program may be a PUP based on Malwarebytes’ disclosed criteria and can choose to quarantine or un-quarantine the detected program.

In other words, after all this nonsense and back and forth over Section 230, years later, Malwarebytes still wins the case because the 1st Amendment protects its opinions.

This is similar to another famous 9th Circuit ruling on 230 from a while back: the Roommates.com case. In that case, the court ruled that Section 230 did not protect Roommates.com for content it places in a pulldown menu (that users used to select roommate preferences), but in the end (many years later) Roommates.com still won the case because the 1st Amendment protected it.

Both of these cases demonstrate two very important things: first, most of what people complain about regarding Section 230 is actually protected by the 1st Amendment, so even if we got rid of Section 230, the 1st Amendment would still enable websites to moderate how they see fit. But, much more importantly, both of those cases demonstrate the procedural benefits of Section 230, in that they enable these kinds of cases to be dismissed quickly and relatively inexpensively, rather than having to go through a years long process. In short, Section 230's civil procedure benefits are that they get frivolous cases tossed out of court much more quickly, and at less expense. And that's important, since so many of these cases are, in some form or another, SLAPP suits, designed to pressure companies not to moderate certain content.

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Posted on Techdirt - 10 September 2021 @ 5:40pm

US Judge Gets It Right: AI Doesn't Get Patents

from the HAL-says-this-is-correct dept

A month ago, we wrote about a perplexing (and dangerous) decision down in Australia ruling that an AI can be listed as the inventor of a patent. As we had explained, there was a concerted effort by a small group patent lawyers and this one dude, Stephen Thaler, to seek out patents for "inventions" that an AI created by Thaler called Dabus ("device for the autonomous bootstrapping of unified sentience"). As we explained in that and earlier posts, the entire point of the patent system is to provide incentives to humans to invent. An AI does not need such incentives. As we've highlighted in the past, the USPTO and the EU patent office have both rejected AI-generated patents. Australia's patent office had done the same, but a judge there rejected that and said an AI could be listed as an inventor.

All of these situations involve Thaler/DABUS, as did a new ruling in the US which... thankfully has rejected the idea that an AI deserves patents after Thaler filed a lawsuit because of the USPTO rejection. I think there's a separate issue here: which is what standing does Thaler have in the first place? If the argument is that "DABUS" is the inventor, it seems that... um... only DABUS should have the necessary standing to challenge the rejection of its patent application. The fact that Thaler thinks he has standing more or less shows how ridiculous the entire claim is in the first place.

After going through the background of the case, and discussing what level of deference the USPTO deserves, Judge Leonie Brinkema gets straight to the actual point, which is pretty simple: AI doesn't get a patent.

Even if no deference were due, the USPTO's conclusion is correct under the law. The question of whether the Patent Act requires that an "inventor" be a human is a question of statutory construction. Accordingly, the plain language of the statute controls.... As the Supreme Court has held: "The preeminent canon of statutory interpretation requires us to 'presume that [the] legislature says in a statute what it means and means in a statute what it says there.' Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous."...

Using the legislative authority provided by the Constitution's Patent Clause... Congress codified the Patent Act in 1952... and has amended the Patent Act a number of times in the ensuing sixty years. In 2011, Congress promulgated the America Invents Act, which, as relevant here, formally amended the Patent Act to provide an explicit statutory definition for the term "inventor" to mean "the individual, or, if a joint invention, the individuals who invented or discovered the subject matter of the invention."... The America Invents Act also added that "joint inventor" means "any one of the individuals who invented or discovered the subject matter of a joint invention."... Additionally, Congress has required that "[a]n application for patent shall be made, or authorized to be made, by the inventor . . . in writing to the Director."... "[E]ach individual who is the inventor or a joint inventor of a claimed invention in an application for patent shall execute an oath or declaration in connection with the application" which "shall contain statements that--... such individual believes himself or herself to be the original inventor or joint inventor of [the] claimed invention."

See where this is going?

As the statutory language highlights above, both of the definitions provided by Congress for the terms "inventor" and "joint inventor" within the Patent Act reference an "individual" or "individuals."... Congress used the same term--"individual"--in other significant provisions of the Patnet Act which reference an "inventor," including requiring that "each individual who is the inventor or a joint inventor" execute an oath or declaration...

The court then notes that in analyzing other laws, courts have long said that "individual" means human. And it also highlights that the language in the Patent Act makes it clear that it was intended to apply to humans -- humans who can make a declaration about their own beliefs.

Congress's use of the term "individual" in the Patent Act strengthens the conclusion that an "inventor" must be a natural person. Congress provided that in executing the oath or declaration accompanying a patent application, the inventor must include a statement "such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in the application."... By using personal pronouns such as "himself or herself" and the verb "believes" in adjacent terms modifying "individual," Congress was clearly reference a natural person.

Then there's a fun bit of judicial eye-rolling, stating: "having neither facts nor law to support his argument," the judge notes that Thaler's argument is basically "but this is good for innovation." But that's not going to fly (leaving aside the fact that allowing AI to get patents would be objectively terrible for innovation, it's also not how any of this works):

Plaintiff provides no support for his argument that these policy considerations should override the plain meaning of a statutory term.

It gets even worse for Thaler's arguments. He argued that the PTO hadn't properly considered the policy ramifications of not allowing AI to get patents, but as the judge notes, that's clearly not true. It had. And it rejected the dumb idea.

Specifically, the USPTO points to a conference on artificial intelligence policy it held in January 2019, and to requests for public comment "on a whole host of issues related to the intersection of intellectual property policy and artificial intelligence" it issued in August and October 2019. In October 2020, the USPTO issued a comprehensive report on those comments.

And... what did that report say?

Many commentators disagreed with plaintiff's view that artificial intelligence machines should be recognized as inventors...

Given how active Thaler and his lawyer friends have been around the globe, I imagine this is hardly the end of these campaigns. I imagine this ruling will be appealed, and how long will it be until some sucker of a Senator or Member of Congress, convinced by Thaler's nonsense, will introduce a bill to amend the Patent Act to enable AI patents?

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