I agree 100% that removing Trump's tweets isn't an option; you simply can't unring that bell. BUT, I 100% disagree that this means Twitter is powerless.
First, as you note the remedy for bad speech is not censorship; it's more speech. Damn straight.
Twitter already took one small step in that direction by posting the "get facts" link....but why stop there? If Orange Man-Baby wants to spew lies, then Twitter should turn on the volume on the truth. This isn't even remotely hard to do -- if Trump posts lies, then Twitter simply offers a counterpoint link to reliable facts that illuminate the truth. I acknowledge that Kool-aid drinkers aren't likely to suddenly open their eyes, but maybe if caught early, we can save a few people before they are fully zombie-fied.
Second, President or not, Twitter should kowtow to no one. If I'm Jack Dorsey, I'd post a warning directly on Trump's page advising him that he must comply with Twitter's TOS, and his failure to do so in the future will result in Twitter taking appropriate action, exactly as it would with any other TOS violation (OK, to be fair -- Jack doesn't post personal messages on anyone's page, but in this instance I think that's the right approach).
This situation is certainly unique, but it's wrong to suggest the problem can't be solved.
Let me be clear -- I normally LOVE TechDirt's legal analysis. I also HATE fake court orders.
But having said that, I really don't understand the basis for saying that the Maryland court relied on a "nonexistent" rule to deny the request to vacate the phony order?
Full disclosure -- I am a lawyer, and after looking at the local rule cited in the article, the answer was immediately and incredibly obvious. Per the local rule, ALL affidavits must include this statement: "I solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge, information, and belief."
THAT STATEMENT IS NOT INCLUDED IN CHAN'S AFFIDAVIT. Yes, to be fair, the affidavit does begin with a statement that says it was made under penalty of perjury, but it doesn't include the exact language required by the rule. This may seem silly to non-lawyers, but I have seen many judges reject affidavits for exactly this sort of technical error.
Yes, it would be nice if judges took a more common-sense approach to things like this, and yes the actual result here was wrong -- the court should have vacated the order. But still -- after 17 years of practicing law, I don't agree the judge was entirely off-base here. Furthermore, technical errors like this can be easily fixed, so has that happened? If not, why not?
There is so much badness here, let's just focus on the two main points:
1.) WHY, dear god WHY do companies allow young, inexperienced lawyers to send letters like this? Actually, to be fair to Mr. Poole, I have received many similar letters from OLD, inexperienced lawyers. I guess the main point is that if you do not have substantial experience dealing with issues exactly like this, then you are going to make an obvious fool of yourself. Don't. Do. That.
2.) I hope Mr. Masnick realizes that posting a copy of this letter without the author's permission is clearly WILLFUL copyright infringement (and, of course, because it was posted on a for-profit site, it also constitutes criminal copyright infringement). No, I don't actually believe this, but I'm guessing that could be the next argument we see from Zillow.
FYI -- there is no such thing as a "safe harbor letter" under Rule 11. Rather, FRCP 11(c)(2) requires you to actually prepare a motion for sanctions and serve it on the opposing counsel. You must then wait 21 days to see if the violator fixes the issue. If they don't, then you can file the motion.
However, I think the courts have largely abandoned Rule 11 -- judges simply do not enforce it except in the rarest of cases. As a result, lawyers have decided there's little to no risk of filing junk lawsuits, which is why we are seeing more and more of them each year.
At the end of the day, judges must follow the rules, and they must punish lawyers who don't. Because that's not happening, the legal profession remains largely a joke.
Hey guys -- what am I missing here? The entire premise of this article is wrong. The assumption is that if you are a user of an interactive computer service (i.e., Twitter) and you retweet content from another information content provider, you can be held criminally liable for doing so.
Not so fast. I realize that probably 99% of people don't understand this, but the CDA (47 USC 230) precludes not only civil liability, but it also bars criminal liability under state law in precisely this context. Yes, the statute has a section heading that says: "No effect on criminal law..." but that addresses only certain aspects of FEDERAL criminal law. State criminal laws are absolutely preempted by the CDA if they seek to punish a user for "publishing" content from another third party. See, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D.Wash 2012) http://scholar.google.com/scholar_case?case=1859109590878296312&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Although most of these types of cases deal with website owners attempting to avoid criminal liability under the CDA, the logic applies to users in exactly the same way. This is so because the CDA applies equally to both PROVIDERS and USERS of interactive computer services.
So, bottom line -- sorry, but there is absolutely no exposure to criminal liability under New Jersey or any other state law for retweeting something like this. Mike Masnik is an Internet god, but this time he made the mistake of trusting the legal analysis of someone who doesn't know what he's talking about.
Techdirt has not posted any stories submitted by DSG72.
Re: Re:
I agree 100% that removing Trump's tweets isn't an option; you simply can't unring that bell. BUT, I 100% disagree that this means Twitter is powerless. First, as you note the remedy for bad speech is not censorship; it's more speech. Damn straight. Twitter already took one small step in that direction by posting the "get facts" link....but why stop there? If Orange Man-Baby wants to spew lies, then Twitter should turn on the volume on the truth. This isn't even remotely hard to do -- if Trump posts lies, then Twitter simply offers a counterpoint link to reliable facts that illuminate the truth. I acknowledge that Kool-aid drinkers aren't likely to suddenly open their eyes, but maybe if caught early, we can save a few people before they are fully zombie-fied. Second, President or not, Twitter should kowtow to no one. If I'm Jack Dorsey, I'd post a warning directly on Trump's page advising him that he must comply with Twitter's TOS, and his failure to do so in the future will result in Twitter taking appropriate action, exactly as it would with any other TOS violation (OK, to be fair -- Jack doesn't post personal messages on anyone's page, but in this instance I think that's the right approach). This situation is certainly unique, but it's wrong to suggest the problem can't be solved.
Sorry, But You Got This One Wrong
Let me be clear -- I normally LOVE TechDirt's legal analysis. I also HATE fake court orders.
But having said that, I really don't understand the basis for saying that the Maryland court relied on a "nonexistent" rule to deny the request to vacate the phony order?
Full disclosure -- I am a lawyer, and after looking at the local rule cited in the article, the answer was immediately and incredibly obvious. Per the local rule, ALL affidavits must include this statement: "I solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge, information, and belief."
THAT STATEMENT IS NOT INCLUDED IN CHAN'S AFFIDAVIT. Yes, to be fair, the affidavit does begin with a statement that says it was made under penalty of perjury, but it doesn't include the exact language required by the rule. This may seem silly to non-lawyers, but I have seen many judges reject affidavits for exactly this sort of technical error.
Yes, it would be nice if judges took a more common-sense approach to things like this, and yes the actual result here was wrong -- the court should have vacated the order. But still -- after 17 years of practicing law, I don't agree the judge was entirely off-base here. Furthermore, technical errors like this can be easily fixed, so has that happened? If not, why not?
Two Things....
There is so much badness here, let's just focus on the two main points:
1.) WHY, dear god WHY do companies allow young, inexperienced lawyers to send letters like this? Actually, to be fair to Mr. Poole, I have received many similar letters from OLD, inexperienced lawyers. I guess the main point is that if you do not have substantial experience dealing with issues exactly like this, then you are going to make an obvious fool of yourself. Don't. Do. That.
2.) I hope Mr. Masnick realizes that posting a copy of this letter without the author's permission is clearly WILLFUL copyright infringement (and, of course, because it was posted on a for-profit site, it also constitutes criminal copyright infringement). No, I don't actually believe this, but I'm guessing that could be the next argument we see from Zillow.
SMH.
Re: Re: Re: Not the lawyer's fault
FYI -- there is no such thing as a "safe harbor letter" under Rule 11. Rather, FRCP 11(c)(2) requires you to actually prepare a motion for sanctions and serve it on the opposing counsel. You must then wait 21 days to see if the violator fixes the issue. If they don't, then you can file the motion.
However, I think the courts have largely abandoned Rule 11 -- judges simply do not enforce it except in the rarest of cases. As a result, lawyers have decided there's little to no risk of filing junk lawsuits, which is why we are seeing more and more of them each year.
At the end of the day, judges must follow the rules, and they must punish lawyers who don't. Because that's not happening, the legal profession remains largely a joke.
Have you all forgotten about CDA 230?
Hey guys -- what am I missing here? The entire premise of this article is wrong. The assumption is that if you are a user of an interactive computer service (i.e., Twitter) and you retweet content from another information content provider, you can be held criminally liable for doing so.
Not so fast. I realize that probably 99% of people don't understand this, but the CDA (47 USC 230) precludes not only civil liability, but it also bars criminal liability under state law in precisely this context. Yes, the statute has a section heading that says: "No effect on criminal law..." but that addresses only certain aspects of FEDERAL criminal law. State criminal laws are absolutely preempted by the CDA if they seek to punish a user for "publishing" content from another third party. See, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D.Wash 2012)
http://scholar.google.com/scholar_case?case=1859109590878296312&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Although most of these types of cases deal with website owners attempting to avoid criminal liability under the CDA, the logic applies to users in exactly the same way. This is so because the CDA applies equally to both PROVIDERS and USERS of interactive computer services.
So, bottom line -- sorry, but there is absolutely no exposure to criminal liability under New Jersey or any other state law for retweeting something like this. Mike Masnik is an Internet god, but this time he made the mistake of trusting the legal analysis of someone who doesn't know what he's talking about.