White House Potentially Exploring Executive Order On 'Social Media Bias'

from the the-first-amendment-would-like-a-word dept

The White House may be preparing an executive order for the President, pushing for investigations of "bias" at social media companies. It is not definite, but someone has leaked us a draft two page executive order. We're not releasing the draft because, despite it coming directly from someone in the White House, others have insisted it's not an accurate document, even as the approach to some extent mirrors the announced plans of the DOJ to investigate bias. Another reason we're not releasing the document itself is that we're quite aware of reports saying that there are attempts to find "leakers" in the White House, and one common method of doing so is to put small indicators in documents. We cannot guarantee that this document is not such a document and thus will be reporting on the basic concept of what's in this draft, without revealing the full document.

But, to be clear, if this document is accurate, it would almost certainly lead to a huge First Amendment fight, which it seems likely the companies would win.

Obviously the issue of social media and supposed political bias has been a big topic in DC lately -- including with the President -- despite the near total lack of actual evidence to support these claims. Yes, there is evidence of people being kicked off these platforms... but there is no evidence that the reasons have anything to do with political bias (people of all political stripes have been removed from these platforms). And, yes, there is also evidence that employees at many internet companies may lean one way politically, but that too is overstated and says nothing about how the platforms actually work.

Recently, we noted that the DOJ and various state Attorneys General were talking about using antitrust law against social media companies over bias, and explained in fairly great detail why that would almost certainly run afoul of the First Amendment and a whole long list of Supreme Court cases detailing how the government cannot compel speech of this nature.

And that's where this executive order, as leaked, would almost certainly run into huge First Amendment issues. It tries to hide these behind antitrust claims, saying that it's about ensuring competition and preventing the exercise of market power that "harms consumers, including through the exercise of bias." The Executive Order itself doesn't hide the intent, as "bias in online platforms" is specifically in the title. Basically, the order would task the White House with "investigating" social media platforms for bias and then seek to use antitrust actions (or pass it off to the DOJ or FTC) to punish companies that show loosely defined "bias." The document takes as default that any kind of "bias" on major internet platforms should be taken as anti-competitive (which seems incredibly questionable) and then also requires that various agencies give the President a report on how to "address" social media bias.

I have trouble seeing how this could possibly be constitutional under the First Amendment, as it is, quite explicitly, the government trying to regulate speech, and clearly does not fall into any of the exceptions to the First Amendment. It's possible this executive order will never actually become anything -- perhaps someone in the White House will prevent it from moving forward (it's also clear that the draft I've seen is not complete, as there are still notes about what's being worked on). But the fact that this is even being considered is certainly notable.

I asked Ken White, well known around here as a former Assistant US Attorney and current First Amendment lawyer what he thought of the draft and he noted that the document seemed so weakly put together that he had a hard time believing it was something anyone was seriously considering, though, he noted "with this administration it's very difficult to tell." He also noted that it appeared to be "more posturing than substance" and designed to "preach to the choir" rather than anything serious. As for the substance, he noted that while it asserts that "bias" is a violation of antitrust law, that's not at all accurate:

That’s a distortion and exaggeration. Nothing in the document elaborates or supports it. To the extent antitrust is concerned with bias it’s not the "kick the Nazis off the platform" kind. It's more like a concern about, for instance, Google altering search results to prefer products and services it owns.

Indeed, the general point of antitrust is to deal with when a dominant player is abusing its position to favor its own offerings, not on how it handles general moderation duties. So, while I wouldn't put it past this administration to mock up this kind of executive order as an exercise in thinking through what it can "do" about the exaggerated and misleading claims of "political bias" in search results, I have a hard time believing the administration would bother pushing forward with this idea, and if it actually did get that far that it would have any luck in convincing anyone (who matters) that this was constitutional. That said, if the point is just, as Ken suggested, preaching to the choir, I also wouldn't put it past this administration to push out this executive order just to rile up Trump's most ardent supporters, who continue to scream to the heavens about political bias in search results, despite a near total lack of evidence to support such claims.

Filed Under: antitrust, bias, doj, donald trump, executive order, first amendment, free speech, social media bias
Companies: facebook, google, twitter

The First Emojiment: New T-Shirts & More By Techdirt

from the make-no-law dept

Get your First Emojiment gear on Teespring »

You know the words — or at least you should! Introducing the latest line of t-shirts, hoodies, mugs and stickers from Techdirt: our emoji-fied version of the First Amendment to the US Constitution, available now on Teespring. The design is based on the Twemoji icon set, licensed under CC-BY 4.0.

Also, be sure to check out our recently-released Free Speech Pro-Tip gear and all the other great designs in our Teespring store.

Filed Under: emoji, first amendment, free speech

A Federal Anti-SLAPP Law Would Make CDA 230 More Effective

from the protecting-free-speech dept

“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Dombrowski v. Pfiser—Justice Brennan

Lawsuits against institutions that transmit speech, such as newspapers and blogs, impose costs that those institutions act to avoid—if necessary, by preemptively censoring any third-party speech that increases their exposure to legal liability. The purpose of Section 230 of the Communications Decency Act is to prevent this collateral chilling effect, specifically on internet users’ speech. CDA 230 enables the dismissal before trial of suits seeking to hold websites of the user-driven content model, such as Twitter and YouTube, liable for the unlawful speech or conduct of their users. This law is based on a policy judgment that, if held liable for all illegal content within millions of online posts, websites would reduce the amount of speech they transmit and, erring on the side of avoiding legal costs, would censor some lawful speech.

But even unsuccessful suits impose costs—after all, defendants who dismiss a suit before trial on CDA 230 grounds still must hire a team of expensive lawyers to secure dismissal. An empirical study in 2012 by Professor David Ardia at the University of North Carolina determined that the average CDA 230 case terminated on a motion to dismiss takes almost a year to reach dismissal. Ardia noted, plausibly, that litigating for this length of time entails substantial defense-side costs. In order to mitigate the collateral chilling effect of these pre-trial costs, defendants in CDA 230 cases need a fee-shifting mechanism that allows them to impose their costs on plaintiffs whose cases have faltered at the motion to dismiss stage. Given likely political obstacles to adding a fee-shifting provision to CDA 230 itself, a good way to supply this mechanism is through federal anti-SLAPP legislation.

Anti-SLAPP Laws

State anti-SLAPP laws serve a similar, but broader purpose than CDA 230: they provide for the expedited dismissal of meritless suits seeking to sanction the exercise of speech—“Strategic Lawsuits Against Public Participation,” or “SLAPPs,” in both an online and an offline context. The object of a such a meritless suit is often to silence someone or to force them to spend money, and not necessarily to obtain a favorable result at trial. A classic example of a SLAPP is a defamation lawsuit filed by a public figure against a newspaper in response to a critical opinion piece.

To invoke the protection of an anti-SLAPP law, a defendant must go through two steps. First, she must show that a suit is in response to activity on the part of the defendant that falls in one or several categories of First Amendment-related activities. Every anti-SLAPP law is worded differently, but many specify that they protect statements on “matters of public interest,” “issues of public concern” or something similar. Second, a defendant must show, in a promptly organized pre-trial proceeding, that the suit is meritless. And unlike CDA 230, most anti-SLAPP statutes impose the defendant’s costs on the plaintiff upon dismissal.

Currently, there is no federal anti-SLAPP law. As a result, there are important gaps in anti-SLAPP protection. For example, an anti-SLAPP defense is not available to defendants faced with meritless suits involving federal law claims. Additionally, plaintiffs can circumvent anti-SLAPP protection through “forum-shopping”—that is, by strategically bringing a suit in a state with a weaker anti-SLAPP law when bringing the suit in a state with a stronger anti-SLAPP law also would be proper. Federal anti-SLAPP legislation can prevent both of these tactics, not only in a CDA 230 context but with respect to frivolous anti-speech litigation generally.

Combining CDA 230 and Anti-SLAPP Protection in State Court

In some state courts, a defendant like YouTube can combine CDA 230’s substantive protection against liability for third-party content with an anti-SLAPP law’s fee-shifting feature. A defendant in such a case argues that a suit targeting the operator of a website for the speech or conduct of its users is meritless in light of the applicability of a CDA 230 defense and thus should be dismissed under the anti-SLAPP law. And under most anti-SLAPP statutes, the plaintiff must then compensate the defendant for her costs.

The combined application of the two defenses has occurred several times in California state courts. In Albert v. Yelp, for instance, a plaintiff-side consumer lawyer sued Yelp for defamation over negative reviews of her firm. Lenore Albert, the proprietor of a small firm in Huntington Beach, California, advertised herself as a “consumer advocate” fighting on behalf of “the people.” An employee of the firm became upset with Albert after she missed a filing deadline in a case brought on behalf of the employee’s friend. This employee organized a campaign among her friends to lower the firm’s Yelp rating by posting reviews characterizing Albert as an incompetent attorney who misses deadlines. Albert brought a defamation suit against the employee, her friends, and, most importantly for the purpose of obtaining a measurable award of damages, against Yelp itself.

Yelp disposed of the suit with an anti-SLAPP motion. In the first step of its anti-SLAPP analysis, the court noted that whether a lawyer presenting herself as a crusader for “the people” was living up to this self-description was a matter of public interest squarely within the purview of anti-SLAPP protection. Second, the court determined that the suit was meritless, as CDA 230 unambiguously protects Yelp from liability for defamation committed by a consumer reviewer. The case was dismissed and, in accordance with California’s anti-SLAPP statute, Yelp recovered its costs.

Closing Loopholes in This Combined Defense Through Federal Anti-SLAPP Legislation

Plaintiffs, however, can avoid this fortified combination of defenses in at least two ways. First, because state anti-SLAPP rules do not apply to federal claims, a plaintiff bringing a harassing lawsuit can bypass a state anti-SLAPP law by pleading a federal claim rather than a similar state law claim. For example, in 2016, Resolute Forest Products, a Canadian logging company, brought a lawsuit against Greenpeace in response to a media campaign accusing the company of unsustainable logging practices. Resolute alleged, among other claims, that Greenpeace violated both state and federal anti-racketeering laws by “creat[ing] and disseminat[ing] false and misleading reports and information…for the unlawful purpose of soliciting fraudulent donations from the public-at-large.” Resolute’s federal racketeering claim was equivalent to its state racketeering claim and overlapped with its state law defamation cause of action, which provides relief for reputational harm from false statements. A California federal court dismissed all claims against Greenpeace but only applied the anti-SLAPP law’s fee-shifting feature to the state law claims. Thus, Resolute partly accomplished its intended objective of forcing Greenpeace to spend money defending itself it court.

Second, a plaintiff can avoid state anti-SLAPP protection by strategically filing a suit in a jurisdiction with a weak anti-SLAPP law. For example, Washington Redskins owner Daniel Snyder responded to an article in a Washington D.C. newspaper criticizing Snyder’s management and ownership practices by threatening to sue a New York hedge fund that owned the paper. Washington, D.C. had at the time and continues to have a stronger anti-SLAPP law than New York. In a letter to the hedge fund, Snyder’s attorney candidly admitted the abusive motivation of the suit, writing “We presume defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper.” Snyder ultimately dropped the suit.

A federal anti-SLAPP law would close these loopholes in anti-SLAPP protection. Federal claims would be subject to federal anti-SLAPP rules. And a federal anti-SLAPP law can contain a removal provision that allows defendants to transfer a suit to federal court, which would prevent forum-shopping. More specifically, federal anti-SLAPP legislation would maximize internet users’ protection from collateral censorship by making the anti-SLAPP fee-shifting mechanism available to defendants in a broader range of CDA 230 cases.

Limitations to Anti-SLAPP Legislation’s Enhancing Effect Upon CDA 230

While federal anti-SLAPP legislation undoubtedly would enhance CDA 230, there are certain gaps in both CDA 230 and anti-SLAPP protection that would not be mitigated by combining the two at the federal level. First, CDA 230 immunity can be narrowed by statutory amendment or judicial interpretation, and any such development simultaneously reduces the scope of anti-SLAPP protection in a CDA 230 context. Second, state anti-SLAPP jurisprudence suggests that a federal anti-SLAPP law would not apply in all CDA 230 cases.

A federal anti-SLAPP law would neither add to nor subtract from substantive CDA 230 immunity, however Congress and the courts independently choose to define this immunity. An anti-SLAPP defense can only be invoked against a meritless suit, and a complaint that pleads around the bounds of CDA § 230 immunity potentially has merit. Any legislation creating exceptions to CDA 230 immunity, such as the recently enacted Allow States and Victims to Fight Online Sex Trafficking Act, would simultaneously limit anti-SLAPP protection. The same is true of any judicial doctrine reducing the scope of CDA 230 immunity. For example, in the wake of Fair Housing Council of San Fernando Valley v. Roommates.com, which established that website operators can be held liable for “materially contributing” to unlawful third-party content, a number of lower courts have permitted plaintiffs to overcome a motion to dismiss with mere allegations that the defendant has played a role in the creation of content. A court would permit a plaintiff to overcome an anti-SLAPP motion on the same basis.

Additionally, courts likely would define limitations to anti-SLAPP protection that would preclude a federal anti-SLAPP defense in some CDA 230 cases. As explained, under anti-SLAPP statutes, before a court determines whether a claim is meritorious, the court typically must make a threshold finding that a legal dispute involves a matter of public interest. Defendants’ anti-SLAPP motions are sometimes defeated because the subject matter of the speech at issue is not “of concern to a substantial number of people,” but rather is something of interest only to the litigants or to a small subset of the public.

Inevitably, courts will find that some claims that lack merit on account of the applicability of a CDA 230 defense nevertheless do not qualify for anti-SLAPP protection because they do not touch on a matter of public concern. For instance, California courts sometimes distinguish online consumer reviews that involve simply an individual customer’s assessment of a vendor—a purportedly private matter—from reviews that provide additional commentary on issues of interest to the public, such as advice on how to choose a vendor within a certain industry. While CDA 230 typically protects a defendant consumer review website from liability for an unlawful consumer review, anti-SLAPP protection at the state level does not apply in all such cases. More generally, there is an imperfect overlap between CDA 230 immunity and anti-SLAPP protection. Assuming that a federal anti-SLAPP statute would mimic the language of broad state anti-SLAPP statutes, a similar imperfect overlap with CDA 230 likely will develop in jurisprudence interpreting a federal anti-SLAPP statute.

Conclusion

Although CDA 230 has come under criticism recently pertaining to some of its specific applications, it is important to sustain CDA 230’s central role in enabling the modern system of internet discourse and commerce. To accomplish more fully its indispensable purpose of protecting internet users from the threat of collateral censorship, this legal linchpin of the modern web needs to be supplemented with a fee-shifting provision. Passing federal anti-SLAPP legislation is an effective means to provide this crucial support.

Julio Sharp-Wasserman is a third-year Columbia law school student and Notes Editor for the Columbia Science and Technology Law Review, which will be publishing his student note on CDA 230 this winter.

Evan Mascagni is the Policy Director for the Public Participation Project, a non-profit organization working to pass federal anti-SLAPP legislation in Congress. PPP also assists individuals and organizations working to pass anti-SLAPP legislation in their states.

Filed Under: anti-slapp, cda 230, censorship, federal anti-slapp law, first amendment, free speech, intermediary liability

Billionaire Steve Wynn, Who Once Tried To Kill Nevada's Anti-SLAPP Law, Loses Defamation Case Under That Law

from the now-you-see-why... dept

Back in 2015, we wrote about some apparent backroom dealing in Nevada, in which the legislature seemed poised to get rid of that state's very good and thorough anti-SLAPP law. As a reminder, anti-SLAPP laws are designed to stop an unfortunately common practice of wealthy individuals and companies from suing critics and reporters for defamation, even though the defamation cases themselves had no chance. The plaintiffs knew that merely dragging the defendant to court would be costly in terms of time, money and general stress. Anti-SLAPP laws were a way to deal with that unfortunately common practice usually by (1) putting the immediate burden on the plaintiff to show a likelihood of success and then dismissing the case quickly if they fail to do so, (2) halting the expensive and time-consuming discovery process, and (3) often making the plaintiffs pay the defendants' legal fees. The idea is that this is a deterrent to frivolous lawsuits, while leaving legitimate defamation lawsuits unharmed. As we've pointed out for years, unfortunately, only about half of the states have such anti-SLAPP laws, of varying quality, and there is still no federal anti-SLAPP law.

In 2013, Nevada passed one of the best anti-SLAPP laws in the country. But, by 2015, there was an effort underway to throw it out. Nevada-based lawyer, Marc Randazza, pointed out that it appeared that billionaire Steve Wynn was a driving force behind the effort to kill Nevada's anti-SLAPP law, perhaps in response to having recently lost a defamation lawsuit in California, thanks to California's own anti-SLAPP law. Thankfully, that effort failed.

And now the National Law Review is pointing out that Wynn has lost yet another defamation lawsuit, under the very Nevada anti-SLAPP law that he was rumored to be seeking to get rid of a few years back. National Law Review has the full story in which Wynn sued the Associated Press and one of its reporters, Regina Garcia Cano.

After the Las Vegas Metropolitan Police Department (LVMPD) in February released a public statement describing allegations by two women that Mr. Wynn had sexually harassed or assaulted them, AP reporter Regina Garcia Cano filed a public records request. Copies—redacted to protect information that would have identified the two alleged victims—were produced by the LVMPD to Ms. Cano. The AP published Ms. Cano's report summarizing the two records—both of which concerned alleged incidents that happened in the 1970s—and Ms. Cano included the LVMPD's statements that it could not investigate the allegations because of Nevada's 20-year statute of limitations, but that it had passed to Chicago authorities a report concerning the incident alleged to have occurred there. That report included both a description of the alleged assaults and the claim by the alleged victim that she had later given birth to Mr. Wynn's child in unusual circumstances in a gas station restroom—a claim Ms. Cano paraphrased in her article.

Mr. Wynn asserted defamation based only on the portion of the article summarizing the incident that was alleged to have taken place in Chicago, contending that the complainant was "delusional" and that the AP's failure to quote verbatim the description of the alleged childbirth scenario rendered the news article unfair because readers would have found the allegation incredible if they had read the entire police case report.

The court, however, did not buy it according to the National Law Review. Unfortunately, Nevada's District Court doesn't post court documents online, so we don't have the full ruling, but the NLR notes that, using Nevada's anti-SLAPP law, "The court held that the challenged news report was absolutely privileged as a fair and accurate summary of a publicly available police case report reflecting a woman's allegation that Mr. Wynn had sexually assaulted her years earlier."

Of course, Wynn's attorney is quoted in the article saying that they will appeal this ruling, once again keeping the AP and Ms. Cano in court for much longer. The ruling does entitle the AP to legal fees, and those legal fees seem likely to increase as the appeal continues. But if the goal of the process is just to keep the AP and Cano in court as long as possible, that might not be of that much concern. Still, this is why these kinds of anti-SLAPP laws are so important, why we need more of them, and why they need to be protected from those who seek to use the court system to harass and burden critics and reporters.

Filed Under: anti-slapp, bullying, defamation, first amendment, free speech, nevada, regina garcia cano, steve wynn
Companies: ap

Court Dismisses Defamation Lawsuit Over Steele Dossier

from the slappity-slapp-slapp dept

You may have noticed that an awful lot of news broke yesterday concerning a wide variety of legal cases all touching on the President. Most of the coverage, of course, went to the two big cases: the guilty verdict against former campaign chair Paul Manafort and the guilty plea by former Trump personal lawyer Michael Cohen. There were some other cases with breaking news as well, including a judge in New York rejecting Trump's attempt to dump a lawsuit filed against his private security team for apparently beating up some protesters. Also, in a (frankly, very weak) defamation lawsuit filed by former Apprentice contestant Summer Zervos, apparently Trump has refused to submit to discovery requests, leading Zervos' legal team to file a motion to compel him to respond.

Most of those cases don't cover the kinds of things we usually talk about (the defamation case being the exception -- but at this stage, there really isn't that much worth commenting on). However, there was yet another case loosely involving the President that is something we'd talk about and which concluded late Monday (though, the news broke on Tuesday as well). And that involved a defamation case filed by three Russians against Christopher Steele, author of the so-called "Steele Dossier." Back in October of last year, three Russians, Mikhail Fridman, German Khan and Peter Aven, who are all involved with Alfa-Bank, sued Fusion GPS and its founder Glenn Simpson in federal court for defamation. That case is still waiting for a ruling on both a Motion to Dismiss and an Anti-SLAPP Motion.

However, while all of that was going on, the same three Russians filed a very similar case in the DC Superior Court (the equivalent of a state court, rather than federal court). That case was filed in April of this year, and while the federal court is still dilly dallying around on it, the state court dismissed the case on anti-SLAPP grounds (which rendered a related Motion to Dismiss moot.).

As we've discussed in the past, unfortunately, DC federal courts have decided that DC's (decent) anti-SLAPP statute does not apply in federal court (which suggests the anti-SLAPP motion in the federal case may fail, even if the Motion to Dismiss may succeed), but it has always applied in DC's local courts. And here, the judge, Anthony Epstein, applied it in a pretty straightforward manner to decide that the Russians have no case. Like most anti-SLAPP laws, which are designed to stop bogus defamation lawsuits quickly, DC's shifts the burden to the plaintiffs early on, requiring them to establish a likelihood of success in their claims in order for the case to move forward.

For that to happen, the Russians needed to show evidence that Steele's statements about them in the dossier were false, damaging and done with actual malice (which means Steele would have had to known they were false, or done so with reckless disregard for the truth). This is a pretty high bar. Rather than just do so, the Russians tried a different strategy, which tried to attack the applicability of the anti-SLAPP law in the first place:

Plaintiffs make four arguments: (a) Defendants cannot seek protection under the Anti- SLAPP Act because they are not entitled to any protections under the First Amendment; (b) Defendants do not make a prima facie case under the Act that Plaintiffs' claims arise from an act in furtherance of the right of advocacy on issues of public interest; (c) Plaintiffs have shown they are likely to succeed on the merits; and (d) Plaintiffs are at least entitled to targeted discovery to enable them to defeat the motion.

The court buys exactly zero of these four arguments. Claiming that Steele doesn't get First Amendment protections because he's not a citizen is a clear non-starter. That's not how the First Amendment works:

The Act does not explicitly limit its protection to activity that is also protected by the First Amendment, and indeed the Act's legislative history indicates that the Council intended the Act to apply more broadly. In addition, by its terms, the Act does not limit its protections to U.S. citizens or entities. Although Plaintiffs argue otherwise... the plain language of DC. Code § 16- 5502(a) indicates that any party can file a special motion to dismiss. Reading an implied limitation to District residents into the Act would be contrary to the purposes of the Act and the First Amendment to provide broad protection for speech on issues of public interest (as the Court discusses in the next paragraph). In addition, Plaintiffs have not cited, and the Court is not aware of, any case holding that the defenses that a defendant in a defamation case may assert under D.C. law or the First Amendment depend on whether the defendant is a U. S. citizen or entity.

Plaintiffs contend that even if Defendants' speech involves issues of public interest in the United States, it is unprotected by the First Amendment because Mr. Steele is not a US. citizen or resident and Orbis is not a U.S. company. However, advocacy on issues of public interest has the capacity to inform public debate, and thereby furthers the purposes of the First Amendment, regardless of the citizenship or residency of the speaker. The First Amendment protects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times v. Sullivan, 376 US. at 270. Constitutional standards for defamation cases have been developed to safeguard the "important societal interest in vigorous debate over matters of public concern protected by the First Amendment." See Mann, 150 A.3d at 1241. Moreover, the First Amendment "guarantees are not for the benefit of the press so much as for the benefit of all of us." Time, Inc. v. Hill, 385 US. 374. 389 (1967). "It is now well established that the Constitution protects the right to receive information and ideas." Kleinclienst v. Mandel, 408 US. 753, 762-63 (1972) (citations and quotations omitted). As a result, the interest of US. citizens in receiving information that the First Amendment protects does not depend on whether the speaker is a US. citizen or resident.

The court then goes on to point out that even if the above wasn't true, it still wouldn't matter because Steele clearly had close ties to the US. He was hired by a US company to produce the document, and was in the US when he shared the document with the media, and he regularly did other work in and around Washington DC.

As for the second attack, that Steele failed to show that this was an issue of public interest, the court also isn't buying it, because it's obvious nonsense (the "CIR" referred to here stands for "Company Intelligence Reports," a bunch of which made up what's now called the Steele Dossier, and CIR 112 is the one that discusses the Russian plaintiffs and Alfa-Bank):

The Steele Dossier as a whole plainly concerns an "issue of public interest" within the meaning of § 16-5501(3) because it relates to possible Russian interference with the 2016 presidential election. The Steele Dossier generated so much attention and interest in the United States precisely because its contents relate to active public debates here. See Waldbaum, 627 F.2d at 1296-97 (courts "may not question the legitimacy of the public's concern" to avoid becoming "censors of what information is relevant to self-government") (quoting Supreme Court cases). Plaintiffs themselves "readily agree that the 2016 US. Presidential election was of public interest." ... A key part of Plaintiffs' case is that CIR 112 implicitly alleged that Plaintiffs aided "the Kremlin's interference in the 2016 US. Presidential election," and Plaintiffs cannot contend both that Defendants in CIR 112 accused them of cooperation with Russian interference in the election and that these statements did not involve an issue of public interest in the United States. Plaintiffs own contentions therefore establish at least a prima facie case that Defendants' allegedly defamatory statements involve a matter of public interest.

Moreover, CIR 112 expressly discusses Russian foreign policy toward the United States and President Putin's advisors on Russia-U.S. policy, and these too are issues of public interest within the meaning of Contrary to their argument that Defendants defamed them by accusing them of complicity in Russian interference with the 2016 US. presidential election, Plaintiffs argue that CIR 112 does not relate to an issue of public interest because it does not mention any presidential candidate by name or explicitly address the 2016 presidential election.... However, involvement of Russian international businessmen in Russian foreign policy, specifically including Russian foreign policy toward the United States, involves an issue of public interest in the United States, regardless of whether it relates to a particular election.

Finally, we get to the actual attempt to get past the anti-SLAPP and present evidence of a likelihood of success on the merits. That did not go well.

Plaintiffs have not carried their burden because they do not offer evidence that a reasonable jury could find to be clear and convincing proof that Defendants knew that facts stated in, or reasonably implied by, CIR 112 were false or that they published CIR 112 with reckless disregard of the falsity of these stated or implied facts.

In other words: no actual malice, no defamation, go home. While the Russians tried to come up with a formulation that showed actual malice, the court, correctly, rejects it. First, they claim that some of Steele's conjecture had no support, but the court points out that conjecture is protected by the First Amendment and not actionable anyway. Then, they claim that Steele didn't include supporting facts. But, again, that's not enough to show actual malice:

Plaintiffs do not offer any evidence that Defendants knew, or recklessly disregarded substantial information, that no conceivable possibility existed that Plaintiffs were involved in any such Russian interference. The failure to include supporting facts does not support a reasonable inference by clear and convincing evidence that Defendants knew the statements were false or acted in reckless disregard to their falsity: lacking supporting information is different from having opposing information; and although lack of evidence may establish negligence, negligence "is constitutionally insufficient to show the recklessness that is required for a finding of actual malice."

Then, they try to claim that it was "reckless" for Steele to share the Dossier, but that's not what reckless disregard means in the actual malice standard. The court spells out what they failed to show... and even points out other public information calling into question Alfa-Bank's alleged involvement in corruption (this, of course, does not bode well for claims about corruption being defamatory)

Plaintiffs do not offer evidence that Mr. Steele in fact had subjective doubts or recklessly disregarded information about its falsity, or that Defendants had obvious reason to doubt the source described in CIR 112 as a "trusted compatriot" of a "top level Russian government official." See Bank, 387 F. Supp. 2d at 1253-54 (a publisher does not have a duty to corroborate even when a single source of potentially libelous material is a person of questionable credibility); St. Amant, 390 US. at 733 ("Failure to investigate does not in itself establish bad faith"); see Gertz v. Robert Welch, 418 US. 323, 332 (1974) ("mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth"). Moreover, the information in the Steele Dossier about corrupt payments to Russian public officials was consistent with other information in the public domain: "Although Alfa Bank has developed a reputation in the international community as one of the most respected Russian financial institutions, Aven and Fridman have been dogged by allegations of corruption and illegal conduct." OAO Alfa Bank, 387 F. Supp. 2d at 28 (footnote omitted). Mr. Fridman himself acknowledged that the "rules of business" in Russia "are quite different to western standards" and to "be completely clean and transparent is not realistic." Id. at 29.

Also, there's this attempt by the Russians to totally upend basically all of US defamation law, and say that Steele has to prove that what is stated is "true" or else it's actual malice. That's... not how it works.

Plaintiffs argue that Defendants have not demonstrated that the statements are true.... However, the burden is on Plaintiffs to show that the statements were false, not on Defendants to demonstrate their truth.

So, without any evidence to get over the actual malice hump, the court says that the plaintiffs have completely failed to show any likelihood of success, thus triggering the anti-SLAPP law to dump the case.

There is, of course, also the Hail Mary pass at the end of the Plaintiff's efforts, which is to try to force the case into discovery first. Of course, this is explicitly what anti-SLAPP laws are designed to prevent: stopping a bogus defamation case from eating up a ton of the defendants' time and resources in discovery. Indeed, the court notes that this seems like a clear desire to just go on a fishing expedition. After first pointing out that the Russians have presented zero evidence that Steele is somehow holding onto information that will prove actual malice, it notes:

...the Constitution does not entitle plaintiffs in defamation cases to conduct fishing expeditions. The provision of the Act permitting targeted discovery only if the plaintiff shows a likelihood that discovery will produce clear and convincing evidence of actual malice is consistent with plaintiffs' constitutional rights, including their right to trial by jury.... It is also consistent with more general direction from the Supreme Court "to expeditiously weed out unmeritorious defamation suits" in order to "preserve First Amendment freedoms."

And thus:

Plaintiffs are correct that the Act was "not enacted to immunize surreptitious for-hire intelligence operatives who defame private persons." ... However, the Act was enacted to protect the right of advocacy on issues of public interest, and it does not exempt advocates if they can be described as "surreptitious for-hire intelligence operatives." Nor does the Act immunize any defamatory statement whether the information was obtained surreptitiously or openly, or for hire or for other reasons. The Act allows defamation suits involving statements about issues of public interest to proceed, provided that the subjects of the alleged defamatory statement offers evidence that they are likely to succeed. Plaintiffs have failed to provide such evidence....

In other words, this was a classic SLAPP suit and has now been tossed out based on DC's anti-SLAPP law, exactly as it should be. And it was dismissed with prejudice as well, so they don't get to file an amended complaint. Of course, they could appeal, but this is a pretty straightforward application of both an anti-SLAPP law and basic defamation law in the US, so it seems unlikely that such an appeal would be successful.

Over in the federal case, this ruling has already been filed with the judge, though again, it is likely that the federal court will not use the anti-SLAPP law, but seems likely to dismiss for basically the same reasons, just on the Motion to Dismiss instead.

Either way it's nice to see an anti-SLAPP law doing the job it's supposed to do in getting questionable defamation cases, that appear to be brought just to silence a speaker, dismissed quickly. It's yet another reminder of why (a) we need a federal anti-SLAPP law and (b) more states should pass their own anti-SLAPP laws as well.

Filed Under: anti-slapp, christopher steele, defamation, first amendment, free speech, german khan, mikhail fridman, peter aven, russia, steele dossier
Companies: alfa bank, fusion gps

Judge In Broward County Documents Case Decides The First Amendment Doesn't Cover These Public Records

from the 'freedom-of-the-press-is-nice-and-all,-but-shut-the-hell-up' dept

So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.

Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print.

So much for the vaunted First Amendment. While judges are welcome to deliver instructions about what can or cannot be printed (provided they don't mind violating the First Amendment 90% of the time), there's no reason to hand out these instructions to document recipients in public records lawsuits like this one. That's why redaction exists: so public entities can fulfill their public records obligations while withholding information that qualifies for exemptions or to comply with privacy laws. If the respondent screws up the redaction, there's no legal obligation for new agencies or any other records requester to pretend what wasn't supposed to be accessible isn't accessible. The burden is on the government to perform its job correctly.

No laws were violated by the Sun Sentinel's discussion of parts of the document that were supposed to be withheld. It acquired the document lawfully -- in fact, as a result of this court's order -- and discovered the redaction technique used didn't actually redact anything. Parts of what was withheld by the school shows the Broward County School Board mishandled some of its interactions with the Parkland shooter. This obviously was of great interest to the public, so there's no question that part weighs heavily in the favor of the paper's First Amendment rights.

What's worse is the judge stated in court the Sun Sentinel did something devious to expose the supposedly-redacted information, when it was actually the Broward County School Board that failed to do its job properly.

“You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”

Um… OK. What the hell does this even mean? Would she be coming down on a public records recipient who was handed the wrong documents or entire pages that were supposed to be withheld? Would she have harsh words for a recipient who received someone else's requested documents thanks to a bureaucratic screw-up and published those? Here's how Judge Scherer thinks the First Amendment should be applied to public records:

“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.

Whew. Sounds like prior restraint. The only entity that should be restrained is the government in public records lawsuits, and only what's absolutely necessary to be withheld should be withheld. It's not up to the judge to hand out a line-by-line order on publication to recipients. The restraint should target the government and no one else. If the government screws up, that's on it, not those who've lawfully acquired the documents.

Given this terrible take on the First Amendment, I can offer a much better prediction this time around: the Sun Sentinel's anti-SLAPP motion against the Broward County School most likely will not be entertained by this court. Whatever was said here is the judiciary standard in Judge Scherer's court. And it sets an extremely low bar for government agencies who think others should be yelled at for the government's failures.

Filed Under: broward county, broward county school board, elizabeth scherer, first amendment, florida, free speech, prior restraint
Companies: sun sentinel