Tanner Andrews's Techdirt Profile

Tanner Andrews

About Tanner Andrews

Tanner Andrews's Comments comment rss

  • Jul 01, 2022 @ 12:11am

    Federal Anti-SLAPP Considered Unlikely

    why not go crazy and not just codify the actual malice standard into law, but pair it with a strong, functioning federal anti-SLAPP law that would allow defendants dragged into court as an intimidation and speech suppression tactic to get cases kicked out of court quickly
    Well, the main problem is that defamation is essentially a state-law thing. The Federal courts only deal with it when there is a basis for Federal jurisdiction, and even then they will normally apply the substantive law of the underlying state. Erie Railroad v. Tompkins, 304 U.S. 64 (1938). The U.S. Constitution bars states from doing certain things, e.g. enforcing race-based covenants, Shelley v. Kraemer, 334 U.S. 1 (1948), or penalizing certain speech, Times v. Sullivan, 376 U.S. 254 (1964). It may add certain defensive protections to a state's standard law, as, for instance, barring defamation claims for true speech, Garrison v. Louisiana, 379 U.S. 64 (1964), unless that speech offends a police officer, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). That case is commonly known for the ``fighting words'' doctrine, which allows punishment without consideration of whether the offending words are true. This leaves you with the problem that Federal law is not likely to help much. Most defamation cases will remain in state court, so a procedural statute is of limited value. For a substantive statute, you need a Federal ``hook''. That is, the offending speech needs to have affected interstate commerce, or treaty obligations, or some other thing which gives Congress the power to act. Getting that Federal ``hook'' is supposed to be challenging. You need to be able to say that defamation, generally, affects interstate commerce. That is different from saying that a particular libel crossed state lines, so that a libel in Pensacola might injure one's reputation in Alabama. For a Federal anti-SLAPP, then, you would need some sort of finding that baseless defamation claims are somehow clogging the channels of commerce. I do not say it cannot happen. Congress does occasionally find seemingly local activity to clog the channels of commerce. In Heart of Atlanta v. U.S., 379 U.S. 241 (1964), the court allowed application of Federal anti-discrimination law to businesses which were involved in accommodating interstate travellers even where the businesses themselves stayed within a local area. But it is difficult to get that Federal ``hook'', and it is supposed to be difficult. Sure, I would like to see it happen. I just think it is going to be challenging to make a Federal anti-SLAPP law work in state court actions.

  • Jun 28, 2022 @ 04:53am

    The Herald-Tribune, which had already obtained some of this information [...] is rightfully upset at this turn of events
    As well they should be. The U.S. Supreme Court already addressed that very fact pattern in _Florida Star v. B.J.F., 491 U.S. 524 (1989), where the newspaper obtained the names from the papers put out for reporters in the press room. The state court awarded damages for publishing victim names. This was initially upheld on appeal, _Florida Star v. B.J.F., 499 So.2d 883 (1DCA 1986), but reversed on cert to U.S. Supremes. Not my case, so I am free to point, laugh, and jeer at the kind of judge that would not scold Carol Jean LoCicero and James B. Lake, from the firm of Thomas & LoCicero in Tampa, for bringing such a thing to court. That was a pretty poor judge, indeed, who granted a temporary injunction to the Sheriff's Dept to bar dissemmination of the names of its deputies.

  • Jun 25, 2022 @ 11:37pm

    It’s gay rights and abortion, actually
    I think it is gay rights and contraception. They are already looking at Griswold v. Connecticut, 381 U.S. 479, which was contraception. Brown v. Board of Education, Henderson v. U.S., and Burton v. Wilmington Parking Authority to follow shortly thereafter.

  • Jun 25, 2022 @ 06:19am


    First, what is a “semi-public” profile,
    How about a profile that is only visible to ``members'' of the service. If wankporn.com shows its user profiles only to logged-in users, then those would be semi-public.
    Second, what does “a bounded system” mean?
    I weill take it as a ``walled garden''. For instance of you can have wankporn.com friends, who by definition must have profiles on that site and who may post content on that site, then you have a bounded system. Even if you can link out from wankporn.com to other web sites, the idea is that there is a collection of material on wankporn.com and you can browse within that ``walled garden'' secure in the knowledge that you will have only appropriate content so long as you stay on that website. None of this is to suggest that regulation, even with sound definitions for semi-public profiles and bounded systems, could possibly comport with the U.S. First Amendment.

  • Jun 25, 2022 @ 01:54am

    Castle Rock

    legal ability to hold police accountable for their action or inaction
    It might be unwise to express optimism. Castle Rock v. Gonzales, 545 U.S. 647 (2005)

  • Jun 23, 2022 @ 06:18am

    Travel Through Rural Areas

    Nobody in a population centre is hard for choice with cell service
    Admittedly, I am located in the city, and we have strong service downtown. But, if I travel across the state, there are some rural areas where service is kind of dodgy with a major carrier. Now, imagine crossing the state with minor brand Dish instead. How many tens of miles will I travel out of range of their towers? It could be a long, long way in rural areas. How long will people who live in cities, but travel between them, put up with sparse coverage? It might not be all that long. Dish may well be doomed, even as I sit here writing this there may be a miasma of death about them.

  • Jun 23, 2022 @ 12:36am

    liability in other states

    erely putting up a site on the internet doesn’t subject you to the laws of every state
    True. The common view is the Zippo sliding scale. If your web site is purely passive and makes no effort to be available and used in a particular state, then you probably cannot be reached. On the other hand, if yhour site is interactive, and you have members in a particular state, then they are likely to feel entitled. See Zippo Mfg v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. Pa, 1997) and the circuit courts of appeal cases adopting it. You might be able to avoid it by expressly barring users from offending states. But maybe not. Talk to a lawyer in the state whose Long Arm you seek to avoid.

  • Jun 23, 2022 @ 12:29am

    seems like insightful/funny/flag are also broke
    Yes, broken for me also. I suspect that there was someone working on the new site who has not yet caught up to 1990s HTML technology where you can embed a clever link for something like that, with params passed in using a site.com/path?params=stuff construct. They are trying to work around this lack of technology with javascript, which is generally considered evil. The nice thing with javascript is you can pretend to be a ``real programmer'' with elite technical skills. Even if, in fact, your elitly skilled programming does not work reliably, or at all with accessible browsers.

  • Jun 22, 2022 @ 04:26pm

    Obtaining Material May Not Be Criminal

    it all hinges on not the publishing, but the obtaining
    Well, it is more than that. He needs to be the one who broke the law to obtain it, or else he is not on the hook. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the radio commentator played a tape of an illegally-recorded car phone conversation. He had found the tape in his mailbox. Trial court convicted of disclosing content of illegal wiretap. On review, the Supremes reversed, because it cannot be illegal to broadcast legally obtained material, and inasmuch as finding something in one's mailbox is legal, the obtaining was legal. Sure, he might have previewed it, so long as he was not running firefox without javascript on the new site, but even that in-house use should be legal.

  • Jun 22, 2022 @ 01:08am

    Creatintg Their Own Problem

    Here is the problem ...

    original text of Connecticut’s FOIA did not contain the exception for police disciplinary records created by the 2018 collective bargaining agreement
    That is, the police union sought to contract around the law, to form an agreement contrary to the law and public policy. You cannot simply agree, by contract,that the law does not apply to you. Otherwise, today's police union contract might contravene Public Records. Tomorrow's might provide an off-duty exemption from domestic violence. Next year's, an exemption from auto negligence. Think of it as a benefit if cops do not have to pay for insurance. And perhaps broaden it a little, they could be exempt from DUI/DUBAL because it is a stressful job and they need to relax. And why should it just be cops? They also let the city manager be exempt from these pesky, inconvenient laws. And as a private sector benefit, perhaps bank teller contracts could exempt them from laws governing stealing. Except that is not how it works. To impair a contract, the law must interfere with a lawful contract. A contract permitting concealment of public information, or stealing, or drunken operation of motor vehicles, should be considered void ab initio and not something to be deemed impaired if we clarify that contracts to do illegal things are illegal. Note that I am not licensed in Connecticut, indeed, cannot even reliably spell it. So this is general opinion and not legal advice valid in any particular state, including yours. (sorry, preview still broken on new site, older-model firefox w/o javascript)

  • Jun 17, 2022 @ 11:28pm


    Are you saying that pregnant cis women aren’t people?
    In a post-Roe nation, I think this would be a fair assessment. People can get medical treatment and decide what they wish to carry in their own bodies. They can what they might have removed. In some cases this right extends beyond death: you are not supposed to harvest organs from a dead person without their permission.

  • Jun 16, 2022 @ 04:37am

    How to Avoid Liability

    At the very least, New York State pretty much just guaranteed that small sites like ours need to find and pay a lawyer in New York to tell us what we can do to avoid liability.
    The easy answer, keeping in mind that I am not licensed in NY and can barely spell the name of the state, is to avoid NY. That is, have no offices there and no personnel there. You may also want to bar users from there, Zippo v. Zippo Dot Com, 952 F.Supp. 1119 (W.D. Pa. 16-Jan-1997). My hateful conduct policy: 1. You are a bunch of ignorant yankees 2. I do not care for, but may permit, your speech 3. I also dislike whoever broke "preview" on the new site So, New York, if you want me you are going to have to find me, a thousand miles away, and you can pay so much an hour to sit in my office and discuss hate regulation as it applies outside of NY.

  • Jun 07, 2022 @ 05:17am

    railroads as carriers

    Until 1995, US railroads weren’t peddling packets:)
    Ahem, ``Southern Pacific Railroad Internal Networking Telephon'', ca. 1978.

  • Jun 03, 2022 @ 04:18am

    Someone Would Think of Using Mystery Writer's Book

    “No one would think of having a mystery writer’s book used against him or her in a court of law,” Paulson said in an interview.
    You can at least come close. Prosecutor at least alluded to the work, describing precautions to be used in doing one's husband, during closing. Of course the news coverage played it up. Of course the rules are a little less stringent on whether the state can introduce rap lyrics. There are a lot of reasons, but ultimately it comes down to the discretion of largely older, white judges faced with the unfamiliar. (hope the links work, preview is still broken on linux/intel-64, older firefox, no javascript, new site only)

  • May 26, 2022 @ 11:55pm

    old firefox

    Sure, it is an ``older'' firefox. But it had been working, until the site changed. No change here, leading to the conclusion that the place where the change occurred is the place where the breakage happened. Running without javascript is either old-fashioned or security conscious, take your pick. At any rate there is no excuse for needing javascript to do a preview, as proved by the old site.

  • May 26, 2022 @ 11:52pm

    sophistication in eye of beholder

    Red China has many clever technological measures, along with an army of jackbooted thugs, to enforce its censorship. At least the technological measures seem more sophisticated than what is used in the States, which generally relies solely on thugs rather than a Great Firewall. Since the original request was to identify more sophisticated censorship, I think my answer suffices. If you want to move the goalposts to a certain measure of sophistication, then I will ask you to at least furnish the yardstick.

  • May 26, 2022 @ 11:42pm

    not a program, then

    a simplified version of the academic concept
    Not so much simplified, as wrong-ified. Limiting programs to stand-alone pieces of code as you originally did was clearly wrong. Backtracking to allow dependencies and environments helps only a little, and only if we are careful not to include microcoded processors. Most CISC machines are microcoded, so pretty much everything is interpreted at that level. If there is such an academic concept, it is probably either wrong or useless. I say probably-or, because there is a chance that it is both.

  • May 26, 2022 @ 05:55am

    not a program, then

    A program is (generally) a stand-alone piece of software that can execute on its own and gets compiled before running
    So by your definition, a browser does not qualify as a program, because it does not stand alone and cannot execute on its own. It requires a whole bunch of surrounding stuff, such as a graphic environment (or text environment, for text browsers), and that in turn probably requires an operating system, which may well require special device drivers. Not entirely sure that I agree with you, actually.

  • May 25, 2022 @ 11:55pm

    Twitter is within the Internet/
    OK, I think this is the heart of your analytical problem. Twitter is a destination: the internet delivers packets to and from their servers. The internet may have some resemblence to classical common carriers. However, Twitter is not within that model. Reverting to the classic common carrier model, the railroad brings boxcars full of materials to my siding. It is up to me to decide what to do with the arriving content of those boxcars. The internet brings packets to Twitter, which decides what to do with them. The railroad picks up the boxcars which I fill with goods, and carries those boxcars to my customers. The content of those cars is between me and my customers. Which train carries the cars is up to the railroad, but the railroad has little to do with their content. I decide on what I will send, subject to my customers actually wanting my product. My factory is not the railroad. Neither is my customer's warehouse the railroad. The railroad conveys boxcar-loads of my goods to the warehouse. Likewise, the internet conveys packet-loads of data from Twitter to the devices of its users. Twitter is not the internet, any more than my factory is the railroad.

  • May 25, 2022 @ 11:07pm

    vagueness is occasionally beneficial

    look for loopholes in the system and exploit them
    They taught us in school that sometimes you want to leave things vague, either to handle the likely case that issues do not arise, or to allow for as-needed interpretation. Moderation standards might provide an example. Moderation standards could be described as "flexible, in that a certain number or fraction of users may cause a post to be hidden", or "flexible, in that it will be whatever offends a moderator in a bad mood at the time of consideration". Hey, that is our standard, since it is our computer we get to choose the standard. Can the state set a standard for standards, requiring that moderation standards be measurable and objective? Maybe it could, but it does not at present. If it did, that would certainly rule out editorial discretion. The editor of the NY Times may simply not feel like running your GOP endorsement letter because his coffee was lousy and some guy with a bad spray-tan had stunk up his subway car that morning. The NY Post might not run it because you were not Trump-y enough and the editor had already had enough of you damn liberals that day. What remedy is there against him? Little, maybe, but more likely none. Certainly the law can provide no remedy consistent with the First Amendment or A1S4, Florida Constitution. So, if the published standard is "whether Mr. Andrews likes it", that would qualify as a clear published standard. Likewise, then, "whether Mr. Andrews' fellow readers like it in such numbers" should work. Even "whether Mikey likes it soaked in milk" could do. Oh, you want a detailed standard? We can do that. "Mr. Andrews is more prone to like it after you have gotten him a health beverage", or "Mikey wants the milk to be at least 4%". The whole law reminds us that Tallahassee is actually not all that far from Chattahoochee.

More comments from Tanner Andrews >>