North Carolina Supreme Court Overturns Awful Decision By Appeals Court, Says Giving The Finger To Cops Isn't A Crime

from the possibly-unwise-but-not-illegal dept

Last August, the North Carolina Court of Appeals decided it was OK for police officers to use protected speech as the basis for retaliatory stops. The stop -- and the criminal charges that followed -- originated from this interaction:

While assisting the stranded motorist, Trooper Stevens turned his attention to another car traveling on the roadway. Defendant, a passenger in a small white SUV, had his arm outside of the window and was making a back-and-forth waving motion with his hand. As Trooper Stevens turned to look towards the car, defendant’s gesture changed from a waving motion to a pumping up-and-down motion with his middle finger. Believing that defendant was committing the crime of disorderly conduct, Trooper Stevens got into his patrol car to pursue and stop the SUV.

The ensuing stop resulted in the defendant being charged with obstruction -- not because of his middle finger waving, but because he, at first, refused to present his ID to the trooper. He was never charged with the disorderly conduct the trooper felt was criminal enough to justify a stop.

Despite several other courts reaching the opposite conclusion -- that flipping the bird cannot form the basis for a lawful stop -- the NC Court of Appeals went in a different direction.

Here, without having to determine whether Defendant’s conduct of extending his middle finger, in itself, constituted a crime, we conclude that the trooper had reasonable suspicion to initiate the stop of Defendant. The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed. For instance, the crime of disorderly conduct in North Carolina is committed where a person “makes or uses any . . . gesture . . . intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2017). Defendant’s actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace.

And just like that, North Carolina law enforcement officers had permission to engage in retaliatory stops. This ruling was greeted with near-unanimous derision, given its hot take on the statute Trooper Stevens pulled out of his ass to justify his actions. At least one law prof speculated social media outrage had something to do with the court's decision to withdraw its opinion roughly two weeks after it had delivered it.

Whatever second thoughts the majority might have had about their conclusion, they weren't enough to overcome their first thoughts. A couple of days later, the court released an amended opinion that changed nothing but how loudly the table was being pounded. It doubled down on its bad legal rationale, claiming that the fact that the rude hand gesture continued after the car had passed the state trooper as the vehicle continued down the road changed it from protected speech (a middle finger extended to law enforcement) to a crime (a middle finger extended to no one in particular).

Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore may be constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of “disorderly conduct.”

The stupidity is finally over. The state's Supreme Court has reversed [PDF] the Appeals Court ruling, determining that an objectionable hand gesture alone cannot provide the basis for a traffic stop. (h/t Volokh Conspiracy)

We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.

Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.

It also appears the government lost interest in defending the actions of Trooper Stevens. Its only argument was that the stop was justified under the community caretaking function, which the Appeals Court rejected in favor of the trooper's disorderly conduct theory. The Supreme Court notes it presented no arguments here at all, making it that much easier for it to overturn the lower court's decision.

In its brief here, the State acknowledges that its sole argument in the Court of Appeals involved the community caretaking exception, and that the court unanimously rejected that argument. In fact, the State agrees that the specific, articulable facts in the record do not establish reasonable suspicion of the crime of disorderly conduct.

That sends the decision back to the Appeals Court, which will have to send it back to the trial court to finally grant the suppression motion that triggered this unfortunate succession of bad decisions by North Carolina courts. Unfortunately, the Supreme Court doesn't go so far as to say giving cops the finger is always protected speech, but it does make it clear it's not a criminal act and, alone, cannot justify a stop.

Filed Under: 1st amendment, free speech, giving the finger, north carolina, police, probable cause

Court Tosses Former Sheriff Arpaio's Attempt To Relitigate His Libel Lawsuit The Court Tossed Last Year

from the guess-it's-time-to-go-forum-shopping dept

When you lose a lawsuit -- as former Sheriff Joe Arpaio did last year -- you have a few options. Arpaio sued a few news outlets for defamation, alleging their reference to him as a convicted felon had done over $300 million in damage to his pristine reputation.

Represented by Larry Klayman, Arpaio came away with a loss. The DC federal court not only said Arpaio failed to state facts pointing to actual malice by the publications, but that Arpaio failed to plead any facts at all. That's classic Klayman lawyering: go light on facts, heavy on rhetoric, and try to avoid being being hit with sanctions and/or having your license suspended for your antics both on and off the court.

The correct thing to do when faced with a dismissal is file a motion to amend the lawsuit or petition the DC appeals court for a second look. Arpaio and Klayman did neither of these things. Instead, they dropped one defendant (CNN) and filed essentially the same lawsuit in the same court that had dismissed Arpaio's previous lawsuit with prejudice. (h/t Adam Steinbaugh)

Having had its time wasted twice with the same lawsuit, the court isn't happy with Arpaio or his representation. This decision [PDF] is even shorter than the 11-page dismissal Arpaio received on his first pass. The court says there's nothing new here and this isn't the way the court system works -- something Arpaio's lawyer should know but apparently chose to ignore.

Regarding claim preclusion, the Court holds that the claims in Arpaio I are, for legal purposes, the same as the claims in Arpaio II. Even though plaintiff added two causes of action in Arpaio II (general defamation and defamation by implication), the Court sees no meaningful distinction between the new causes of action and the old ones. Furthermore, plaintiff does not explain why he could not have asserted all of these claims in Arpaio I.

Nor does the new complaint explain why Arpaio chose not to follow the established procedures for challenging a dismissal.

Plaintiff’s argument that he should have been permitted to file an amended complaint in Arpaio I does not save this case either. [...] He claims that he prudently filed a new case because the Court erred in dismissing Arpaio I with prejudice. But plaintiff had at least two procedurally sound options to challenge the Court’s ruling: either file a timely appeal or a motion to reconsider the Court’s judgment. Plaintiff opted to file a new case instead—a decision that runs contrary to case law.

A footnote points out Sheriff Arpaio thought he should be able to bypass the appeal process for political reasons -- something I'm sure his lawyer believes to be a legitimate reason for breaking the rules.

Plaintiff admits that he did not appeal the Court’s ruling in Arpaio I because the D.C. Circuit is “a very liberal forum” that is “likely not favorably disposed towards Plaintiff Sheriff Arpaio[.]” He also states that an appeal would have “been costly and delayed adjudication on the merits.” Plaintiff’s status as a public figure (“America’s Toughest Sheriff”) does not grant him special privileges—he cannot circumvent the normal appeals process because of alleged philosophical disagreements with D.C. Circuit judges.

Unfortunately, the court isn't willing to sanction Arpaio and his legal rep for wasting government resources, as well as those of the defendants forced to again defend themselves from allegations this court had already dismissed with prejudice.

Although the Court agrees with the HuffPost defendants that this case is frivolous, plaintiff’s decision to initiate Arpaio II is not as egregious as the plaintiffs’ actions in Reynolds and McLaughlin. The Court is not convinced that plaintiff filed this case for an improper purpose. Rather, the filing of this case seems to be the result of a legal miscalculation, which the Court corrects today by dismissing the case. Accordingly, the Court will deny the HuffPost defendants’ motion for sanctions.

If refiling an identical suit after a dismissal with prejudice isn't sanctionable, then nearly nothing is. This is the DC court's inadvertent argument for a federal anti-SLAPP law. If Klayman and Arpaio had been forced to pay the legal fees of everyone they sued, they wouldn't have filed a pretty much identical lawsuit after having been handed a loss the first time around.

Filed Under: 1st amendment, defamation, free speech, joe apraio, larry klayman, vexatious lawsuits

Sean Hannity Hires Charles Harder To Threaten The NY Times And Its Reporters, Because Of Course He Does

from the ah,-that-old-first-amendment,-what-is-it-good-for dept

Last month, Kara Swisher wrote an opinion piece for the NY Times ripping Sean Hannity and Fox News to shreds for convincing her mother that COVID-19 wasn't going to be too bad back in February and leading into March. It's notable how she started her piece:

You can relax, Sean Hannity, I’m not going to sue you.

Some people are suggesting that there might be grounds for legal action against the cable network that you pretty much rule — Fox News — because you and your colleagues dished out dangerous misinformation about the virus in the early days of the crisis in the United States. Some might allege that they have lost loved ones because of what was broadcast by your news organization.

But lawsuits are a bad idea. Here’s why: I believe in Fox News’s First Amendment right as a press organization, even if some of its on-air talent did not mind being egregiously bad at their jobs when it came to giving out accurate health data.

Apparently, Hannity does not have the same respect for the 1st Amendment, because after throwing a complete shit-fit over Swisher's piece, he's now hired lawyer Charles Harder (who, full disclaimer, represented the guy who sued us a few years back, and is now also representing the Trump campaign in an ongoing series of SLAPP suits designed to chill the press) to send a truly ridiculous SLAPP threat letter to the NY Times over Swisher's piece and a couple of other NY Times pieces that have criticized Hannity or noted accurately the times he played down the threat of the virus.

I should note, in passing, that Harder might want to take into consideration what happened to the last lawyer who simultaneously represented Donald Trump and Sean Hannity.

Anyway, the letter focuses on the claims that Hannity also talked about how serious COVID-19 might be. He did do this, but at the same time, frequently was seen doing his usual boosterism of the President's "everything's fine here" messaging, by blaming the "mainstream media" and "the left" for "politicizing" COVID-19 by criticizing the President.

The point that the NY Times was making in its pieces was that in his repeated efforts to play up the President's (misleading) messages of everything being fine, many people (including Swisher's mother) didn't believe the disease was as serious as it really was. That can absolutely be true even if at other times Hannity did say the disease could be serious. You can argue that both sides are cherry-picking here, but that's hardly defamatory. Notably, the best that Harder and Hannity can do here is say that the NY Times implied false things, not that they actually said false things -- which again shows how weak any defamation claim would be:

As detailed herein, the Stories, at the very least, impart the false and defamatory inference that (1) Mr. Hannity’s on-air statements (on March 9, 2020) caused Mr. Joyce to believe it was a safe to take a cruise on March 1, 2020, that apparently led to his death; and (2) Mr. Hannity (allegedly) disseminated “misinformation” about the pandemic. Both of these implied statements are completely false. Moreover, the language in the April 18, 2020 Story reflects that you intended these false inferences, by how you deliberately manipulated the wording to create the false narrative. The Stories also encourage readers to draw the false conclusion that Mr. Hannity has no concern for the lives of his viewers.

I mean, if we're going to be suing based on what other people believe you implied, then, uh, Hannity might be opening himself up to lawsuits as well. Except that in most cases, your interpretation of what someone "implied" is the opposite of defamatory, because it's based on interpretation, not actual statements of fact.

The letter also goes on a long rant claiming that the NY Times ignored the fact that Democratic politicians played down the threat as well, and that the "mainstream media" also played it down as well. This has become a key talking point from Fox News and Trump folks, but as Cathy Young pointed out in an excellent Bulwark piece, many of those complaints are taken way out of context (and Young is not someone who is often found defending mainstream media organizations).

Either way, the letter makes it clear that, unlike Kara Swisher's respect for the US Constitution and the 1st Amendment, Sean Hannity, with Harder's help, is ready to sue the NY Times.

Please confirm in writing within twenty-four (24) hours of transmission of this letter that you will retract, correct and apologize for each of the foregoing statements. Failure to do so will leave Mr. Hannity with no alternative but to consider instituting immediate legal proceedings against you. Should that occur, Mr. Hannity would pursue all available causes of action and seek all available legal remedies to the maximum extent permitted by law, including without limitation, actual damages, special damages, punitive damages, and temporary and permanent injunctive relief.

The NY Times, of course, is not usually one to back down from defamation threats, and wasted little time in responding:

“We’ve reported fairly and accurately on Mr. Hannity and there is no basis for a retraction or an apology.”

Once again, right about now, it sure would be nice if New York had a real anti-SLAPP law instead of the heavily limited anti-SLAPP law it currently has. Oh, and also we still need a federal anti-SLAPP law to stop these abusive, censorial threats and lawsuits. But, considering how vocal Sean Hannity is about how much he "loves" free speech, suing the NY Times because it "implied" he played down the threat of COVID-19 suggests otherwise.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, free speech, kara swisher, sean hannity, slapp
Companies: fox news, ny times

The Supreme Court Needs To Reverse The Fifth Circuit's Awful Ruling In The DeRay McKesson Case

from the not-as-much-First-Amendment-in-the-South-right-now dept

Whenever our nation's court system resumes to normalcy, there will hopefully be another case on the Supreme Court docket that could clarify if someone who engages in protected speech can be held responsible for violent actions of someone else at the same protest.

Activist DeRay McKesson participated in a Black Lives Matter protest in Baton Rouge, Louisiana following the shooting of Alton Brown by police officers. During this protest, someone threw a chunk of concrete at a cop, injuring him. The officer -- known only as "John Doe" in his filings -- sued McKesson (along with the entire Black Lives Matter movement and, inexplicably, a set of Twitter hashtags).

The district court found in favor of McKesson, saying he wasn't directly or indirectly responsible for the actions of other protesters, even if the protest began with protesters illegally blocking traffic. Officer Doe appealed. Inexplicably, the Fifth Circuit Appeals Court refused to address the First Amendment issue, finding instead that -- under state law -- McKesson could continue to be sued for participating in the same protest where this mystery cop was injured.

McKesson asked the Fifth Circuit to take a second look at its awful decision. It did and liked what it had said the first time around. The only exception was Judge Don Willett, who belatedly recognized the First Amendment issue was paramount and that allowing protest organizers to be personally sued for the violent actions of others was extremely bad precedent to set.

That's where the Supreme Court might be able to help. If it takes the case, it can reverse this precedent -- one that stands not-so-firmly on a 8-8 split between Fifth Circuit judges. Constitutional law professor Garrett Epps has a thorough rundown of the case's history at The Atlantic. Epps says the wild card in play is not the recently-apologetic Judge Willett, but rather another member of the court, Judge James Ho, who seems determined to make Constitutional rights subservient to the needs and wants of police officers.

As for the First Amendment question, [Judge Ho] said, Mckesson deserves to lose.

Why? Claiborne Hardware concerned a boycott by NAACP leaders of white stores in Port Gibson, Mississippi. The boycott demanded an end to racist hiring practices in those stores. Ho now claimed this made Mckesson’s case completely different:

"The theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities."

This description of Claiborne Hardware—that the Mississippi law at issue in Claiborne Hardware contained a racial element, making the ruling applicable to protests against segregation only—is, not to put too fine a point on it, swill. I cannot find anything in the record to support it.

In Ho's estimation, not participating in the right kind of protest strips protesters of their First Amendment protections and makes them civilly responsible for the acts of other attendees. Since this protest of the killing of a black man by cops didn't agitate against racists laws, McKesson can be sued for an injury sustained by a police officer while policing the protest. Nothing in settled law supports Ho's view, but Ho's vote still counts and that makes an 8-8 tie as good as a win for the anonymous cop.

As Epps sees it, this is Judge Ho being Judge Ho -- a judge who has a track record for siding with law enforcement officers for dubious reasons, including one case where he criticized the lawyer of a 12-year-old student challenging a warrantless search of his pants pockets so harshly the Appeals Court withdrew his decision.

I have no idea why Judge Ho would distort the record this way. But I do note that he has already made clear that he sees protecting police as a major concern. He has tortured the facts of Mckesson in a way that preserves the possibility that police can sue demonstrators. Since the en banc court did not vacate it, the panel’s third opinion—demonstration organizers can be held liable for the actions of others—remains good law in the Fifth Circuit.

Letting this decision stand chills expressive activity in the Appeals Court's jurisdiction. It allows for the punishment of expressive activity via lawsuits targeting organizers and prominent activists any time a government employee suffers an injury while responding to a demonstration. The end result will be fewer protests, which may be exactly what half the judges on this court want.

Filed Under: 1st amendment, 5th circuit, alton brown, baton rouge, black lives matter, deray mckesson, free speech, protests, supreme court

New Jersey Corrections Officials (Temporarily) Banned Released Prisoners From Talking To Journalists

from the furloughing-rights dept

Our nation's prisons and jails are coronavirus incubators. Everyone inside is stacked on top of each other and the notion of "social distance" doesn't have much meaning in a place where sheltering in place means breathing the air of everyone else being forcibly sheltered in place.

Taking the risk of appearing soft on crime, some states have begun releasing at-risk prisoners, subject to a long list of exceptions that still leaves plenty of people in jail (and plenty of people tasked with watching over them). Since most crimes don't come with death sentences, it seems kind of cruel and unusual to subject minor criminals to the increased possibility of dying, but only a small percentage of inmates meet the criteria for release.

However, enough of them have that Rikers Island -- New York City's most infamous jail -- has seen its population dwindle to its World War II numbers. Like most jails, Rikers Island's population includes people who have yet to be convicted of a crime -- jailed until their trial date. With courts handling fewer cases than usual, jailings have become more indefinite than usual while awaiting trial.

Testing has ramped up in federal prisons and local jails, bringing with them severe spikes in confirmed cases. This never looks good on the COVID-19 balance sheet, but jam enough people into enclosed spaces and bad things develop quickly during pandemics.

Releasing at-risk inmates is a good idea, even if it's still mostly an unpopular one. The state of New Jersey decided to show some much-needed compassion by releasing some of its inmates. But that compassion came tied to a long list of restrictions that somehow included First Amendment violations, as NJ.com reports.

As New Jersey prepares to temporarily release some state prison inmates to stem a spike in coronavirus deaths behind bars, corrections officials threatened to throw anyone who talked to the media back in their cells, NJ Advance Media has learned.

The gag order was among more than two dozen conditions prisoners had to agree to in order to get temporary medical leave under an executive order signed by Gov. Phil Murphy this month, which sought to reduce prison populations by moving sick, elderly and other prisoners to home confinement.

Fortunately, this bonus Constitutional violation was stripped from the updated list [PDF] of requirements and restrictions given to released inmates. But it only happened after the ACLU complained to the state attorney general about the unconstitutional aspects of the release terms.

According to a spokesperson for the state's correctional facilities, this First Amendment blunder was the result of copy-pasting a bunch of home release stuff into a single one-size-fits-all document. That apparently included restrictions commonly placed on prisoners still in prison, but not one routinely foisted upon them once they're no longer under the guardianship of the state's correctional facilities.

That was the only comment given by the state on the issue, leaving unanswered questions about any vetting of the document before release or who might have greenlit the violation of released prisoners' rights.

It's not as though many temporarily furloughed prisoners will have much of an opportunity to talk to the media. The restrictions forbid leaving their homes for anything but a medical emergency and requires twice-a-day check-ins. It also forbids them from opening bank accounts, securing loans, operating vehicles, or getting married while they're under house arrest.

While it's good to see the unconstitutional ban on talking to the media was quickly excised once state officials were made aware of it, it's concerning that no one presiding over the temporary release took a better look at the restrictions before making them official.

Filed Under: 1st amendment, covid-19, early release, free speech, journalism, new jersey, prisons

Public Colleges Are Violating The 1st Amendment In Using Facebook Filters

from the the-1st-amendment-applies dept

We've discussed in the past the various court rulings that say that public officials (such as the President) cannot block users on social media as it violates the 1st Amendment. There has been vigorous debate on this (as well as plenty of confusion) but the basic concept is that the courts view the space beneath a social media post -- where people comment -- as a "designated public forum" and as such, bars any content-based discrimination.

That should apply to all government institutions -- not just the social media accounts of those holding elected office. A fascinating new report from FIRE, digs deep into this issue by highlighting that tons of public universities are using opaque Facebook blocklists to hide student comments. For private universities, it wouldn't be a 1st Amendment issue, but courts have repeatedly said that public universities are an arm of the government, and thus Constitutional limits apply to them as well. From the opening of the report:

In October 2019, Facebook founder and chief executive officer Mark Zuckerberg spoke at Georgetown University, extolling the virtues of freedom of expression and noting in particular the importance of college students’ ability to “express who they were and what mattered to them,” including through “challeng[ing] some established ways of doing things on campus.”

Because Facebook is a private entity, the First Amendment— which only limits government actors—does not require it to honor expressive freedom. Zuckerberg’s endorsement of freedom of expression as a principle is a welcome and encouraging development.

It is, however, at odds with the fact that Facebook provides governments the tools to censor. These actors include public universities and colleges which are bound by the First Amendment—those very campuses where students have “challenged some established ways of doing things.”

These tools include Facebook’s automated content filters, which allow state institutions to automatically “hide” users’ comments if they contain words included on Facebook’s undisclosed list of offensive words or the government actor’s customized list of prohibited words. These tools enable public universities—and other government actors— to quietly remove critical posts, transforming the Facebook pages into less of a forum and more of a vehicle for positive publicity.

And yes, this does create a serious 1st Amendment issue:

“There’s no social media exception to the First Amendment,” said Adam Steinbaugh, author of the FIRE report. “Government actors cannot sanitize public discourse — whether it’s President Trump blocking Twitter critics or American colleges filtering dissent on their social media accounts. By selectively eliminating particular viewpoints, universities are violating the First Amendment.”

The report contains numerous examples of problematic filters:

• The University of Kentucky blocks the words “birds,” “chicken,” “chickens,” and “filthy,” presumably to censor criticism of Aramark, the company that provides food for the university under a $250 million contract.
• A number of institutions, including Portland State University, Oklahoma State University, the University of Arizona, and the University of North Carolina at Chapel Hill, blocked the names of political candidates, such as “Trump,” “Bernie,” or “Hillary.”
• During protests over the “Silent Sam” Confederate monument, the University of North Carolina at Chapel Hill blocked posts containing the phrase “Silent Sam,” as well as mentions of “Nazis.”
• Texas A&M University blocks references to the “hook em” horn gesture of their University of Texas at Austin rivals, the Longhorns. Oklahoma State University blocks mentions of its rival football team, including the phrases “boomer sooner” (OU’s fight song), “university of oklahoma,” and “sooners.”
• Not to be outdone by its rival, the University of Oklahoma blocks an emoji.
• Texas A&M blocked terms “peta” and “abuse” to frustrate criticism by animal rights activists, including People for Ethical Treatment of Animals, over research conducted on dogs. Santa Monica College likewise bars “cats,” “dissecting,” “torture,” and “killing” following a PETA campaign criticizing cat dissection in an anatomy course.
• Clemson University blocked mentions of Harambe, a gorilla featured in many internet posts, after a controversy in which it denied censoring Harambe memes.
• The University of Arizona automatically removes posts containing the word “rape” or the name of a preacher known for holding signs reading, “You Deserve Rape.” This restriction presumably removes complaints about the preacher.
• Suffolk County Community College (NY) blocks posts concerning inclement weather, including terms that demonstrate that the purpose is to inhibit criticism, barring the words “blizzard,” “snow,” “dangerous,” “slip,” “scared,” “irresponsible,” “tragedy,” and “accident.” The college also blocks “apologize,” “resign,” and “disgrace.”

The report also notes that -- even more closely related to the Trump case -- that many public universities block user accounts:

• The University of Kansas blocks “Boycott Koch Industries,” a Facebook account referencing America’s second-largest privately-held company, which is based in Kansas and is a major donor to the university.
• Georgia State University blocked a “Georgia for Bernie” Twitter account.
• The University of New Hampshire blocked a Twitter account belonging to “UNH Students for Gary Johnson,” a Libertarian Party presidential candidate.
• Mississippi State University blocks “Legalize Marijuana in Mississippi.”
• The University of Utah blocks animal rights activists, including PETA.
• The University of Alaska Anchorage blocked an “Alaskans4Trump” account.

Because of this, FIRE, together with EFF, have sent a letter to Mark Zuckerberg, asking him to help fix this issue:

Facebook can curb abuse of its tools through transparency and restrictions on accounts belonging to state actors. As our report recommends, Facebook should:

• Distinguish between government and non-government accounts. Require government officials to designate and identify themselves as such.
• Require government actors to establish public-facing policies. Moderation tools should only be available if a government actor has established a public content policy.
• Keep filters “off” by default.
• Alert users when their comment has been filtered on a government actor’s page.
• Make public the words contained on the profanity filter. Government actors should not be able to make use of a secret list of forbidden words.
• Provide tools and reminders for government accounts. Alert government actors that if they use moderation or blocking tools, they may violate the First Amendment. If a

For what it's worth, this is also a good example of how FOIA laws help aid in transparency. Part of the report was developed via heavy use of FOIA and similar laws to request the details of the social media filters used by public universities:

Altogether, FIRE’s survey issued public records requests to 224 public universities and colleges in 47 states and the District of Columbia. 198 institutions provided substantive responses.

While some may have arguments for why colleges should be allowed to filter aspects of their social media accounts, when we're talking about public universities, the 1st Amendment needs to apply.

Filed Under: 1st amendment, blocking, filters, public universities, social media filters
Companies: facebook

Sheriff Sued After Threatening To Arrest A High School Student Over Her Coronavirus-Related Instagram Posts

from the shouting-'arrest'-in-a-pandemic dept

Law enforcement officers and officials are given a considerable amount of discretion. Too bad they so rarely use it.

The sheriff of Marquette County, Wisconsin decided to exercise his considerable discretion by threatening a teenager's parents with jail over her Instagram posts. And for that misuse of his discretion, Sheriff Joseph Konrath is being sued. (h/t SBWisLaw)

A high school sophomore sued the Marquette County sheriff Thursday after he threatened to take her or her family to jail for her post on Instagram warning that she believed she had been infected with coronavirus.

The student, Amyiah Cohoon, went on a spring break trip with her class to Florida. It was cut short due to coronavirus concerns. Once she returned home, she developed COVID symptoms and went to the doctor. After a couple of hospital trips, she tested negative for the virus but was advised it was possible she had had it earlier but had been tested too late to get a positive result.

As was the style at the time, Cohoon made some social media posts about her health situation that weren't entirely accurate.

She posted three messages on Instagram about her situation — one saying she wouldn't be back for a while because she had coronavirus, one saying she might have to stay in the emergency room and one with her wearing an oxygen mask.

"I am still on breathing treatment but have beaten the coronavirus. Stay home and be safe," she wrote in the last post.

These may have been slightly exaggerated. But they also could have been 100% truthful. The teen probably had no way of knowing. The lawsuit [PDF] quotes a release form from the ER saying Cohoon showed symptoms "consistent with COVID-19." Not only that, but health experts have discovered some infected patients are testing negative for the virus.

Consistent with what the doctors told the Cohoons, some health experts believe that “nearly one in three patients who are infected [with COVID-19] are nevertheless getting a negative test result.” See Christopher Weaver, Questions About Accuracy of Coronavirus Tests Sow Worry, Wall Street Journal (Apr. 2, 2020).

Whether or not the posts were 100% accurate, the response from the Sheriff's Department was 100% idiotic.

During the evening on March 27, Defendant Patrol Sergeant Cameron Klump from the Marquette County Sheriff’s office came to the Cohoons’ home. Amyiah answered the door, and Sergeant Klump said he needed to speak with her father.

After Mr. Cohoon came outside, Sergeant Klump explained that the school “superintendent” had complained to Defendant Sheriff Joseph Konrath about one of Amyiah’s Instagram posts. Sergeant Klump showed Mr. Cohoon a screenshot of Amyiah’s third Instagram post (described in paragraph 33 above). A true and accurate copy of the cropped screenshot Sergeant Klump showed Mr. Cohoon is attached hereto as Exhibit 5.

Sergeant Klump stated that he had direct orders from Sheriff Konrath to demand that Amyiah delete this post, and, if she did not, to cite Amyiah and/or her parents for disorderly conduct and to “start taking people to jail.”

The sergeant also claimed Sheriff Konrath wanted the post removed "because there were no confirmed COVID-19 cases in the county at the time."

The sergeant then told Amyiah directly that the sheriff had ordered him to issue citations for disorderly conduct if her post was not removed. Fearing her parents would be arrested, Amyiah deleted her posts.

Clearly, this conduct violated Amyiah's First Amendment rights. If the best you can offer is something vague about "disorderly conduct," you really have no case. Whether or not the posts were 100% medically accurate is beside the point. And the statements made by the sheriff's deputy suggest the only reason the sheriff was demanding their removal was to keep the county's case numbers at zero. Secondary to that was mollifying the school, which has issued its own stupid statement about Amyiah's posts.

Administrator Meicher’s update stated that, “It was brought to my attention today that there was a rumor floating out there that one of our students contracted Covid-19 while on the band trip to Florida two weeks ago. Let me assure you there is NO truth to this. This was a foolish means to get attention and the source of the rumor has been addressed. This rumor had caught the attention of our Public Health Department and she was involved in putting a stop to this nonsense. In times like this, the last thing we need out there is misinformation…"

The lawyer representing the sheriff has confirmed the actions taken by the sheriff violated Amyiah's rights... if only inadvertently. Not all lawyers are Constitutional experts, but any lawyer engaged in defending someone against First Amendment claims should know better than to say something like this:

Sam Hall, an attorney for the sheriff, said the teenager "caused distress and panic" among other parents by claiming she had contracted the coronavirus despite getting a negative test result. (And the Milwaukee Journal Sentinel -- beneficiary of First Amendment protections -- should definitely know better than to state this refers to speech not protected by the Constitution.)

"This case is nothing more than a 2020 version of screaming fire in a crowded theater," he said, referring to speech that is not protected by the First Amendment.

This is a tell that your litigation opponent is the sucker at the table. That line is pulled from a Supreme Court decision that treated certain anti-war speech as a criminal offense, rather than protected speech. This precedent was walked back in a later Supreme Court decision. And it's notable that everyone who quotes this line to defend their First Amendment violations omits one key word: "falsely." It's not illegal to truthfully scream fire in a crowded theater or even to do so while the existence of an actual fire may still be in dispute. The smell of smoke alone can justify shouts of fire.

If this is the legal defense the sheriff plans to mount ("aggressively," according to his legal rep), he's screwed. The school could have spoken to the student's family directly and expressed its concerns with the post. And that may have been resolved amicably. Or everyone could have done nothing and lived through the apparent panic Amyiah's posts failed to provoke. But everyone got stupid and now there's a Constitutional lawsuit to be dealt with. Discretion is only a positive when it's exercised in a way that's beneficial.

Filed Under: 1st amendment, amyiah cohoon, covid-19, free speech, high school, marquette, wisconsin

Disgraced Former NASCAR Boss, Brian France, Uses SLAPP Suit To Silence Parody Twitter Account

from the well,-that'll-solve-your-problems dept

Brian Z. France ran NASCAR for many years, though as a pretty obvious nepotism hire. His grandfather and father ran NASCAR before him. In 2018, France was arrest for driving while intoxicated and criminal possession of a controlled substance, causing him to take an "indefinite leave of absence," that became more permanent once he pleaded guilty to the DWI, and has an agreement that if he completes 100 hours of community service and doesn't get into any more legal trouble, the misdemeanor charges will be reduced to a "non-criminal infraction" later this year. France's time at the head of NASCAR came with some controversy regarding his leadership style -- so it was not that surprising that someone set up a parody Twitter account for him @DrunkBrianF.

France apparently didn't take kindly to being parodied, and hired some muckety muck lawyers -- Daniel Cohen, Kiran Mehta, and William Farley, from Troutman Sanders -- to file a blatantly obvious SLAPP suit in Connecticut Superior Court at the end of February, against John L. Steele, who apparently ran the account, going back to February of 2014. The lawsuit is, to put it mildly, ridiculous. It acts as if the concept of parody does not exist. Indeed, it insists that the intent of the @DrunkFBrianF account was to trick people into thinking it was really Brian France tweeting:

Since establishing the account in February 2014, the pattern of Steele’s conduct through @drunkbrianf makes clear the purpose and intent of maintaining the Twitter account: to harass, demean, abuse, belittle, and disparage Plaintiff while impersonating Plaintiff in a manner that is intended – and in fact does – mislead, confuse, and deceive others to believe that Plaintiff is responsible for the content and activity of @drunkbrianf.

Who the hell is going to look at an account that is literally called "Drunken Brian France" and assume that it's actually Brian France, and not a parody? The argument the lawsuit makes is that because the obviously parody account refers to Brian France in the first person it means he's trying to confuse people into believing it's really Brian France behind the posts, even though the multiple examples in the lawsuit are so blatantly parody, in that each one of them is designed to mock Brian France. Just a few examples directly from the filing:

The lawsuit acts all pearl-clutchy about the use of the 1st person. But that's how parody works, guys. You do an exaggerated and obviously buffoonish version. No one is thinking that the real Brian France would post this stuff. But, nope, France's lawyers insist:

These tweets and photographs, among others, reflect Steele’s ongoing efforts to deceive others to believe Plaintiff is responsible for the Twitter account and the account’s content.

Have these three lawyers literally never encountered parody in their entire lives? The complaint tries to argue that people are actually fooled by this, but they really only point to one single person, who seems generally confused, saying that if this is the real Brian France, they should stop tweeting like this. The second "example" Tweet is a DM exchange of someone just asking if he's really an alcoholic, and doesn't indicate one way or another if the person actually thinks it's Brian France. The third example is literally someone who is just against alcoholism in general, and asks the parody account to "drop the Drunken before your given name" because "alcoholism is a disease." That exchange doesn't even seem to know who Brian France is in the first place.

Either way, if parody fools some very, very foolish and gullible people -- such as the apparently ridiculously naive lawyers at Troutman Sanders -- it's still protected speech. But a lawsuit is a lawsuit, and this one claimed that the parody Twitter account engaged in "invasion of privacy" and "intentional infliction of emotional distress."

Even tough Connecticut has a decent anti-SLAPP law, a lawsuit is still an expensive and time consuming endeavor -- especially in the midst of a pandemic. The most recent filing in the case noted that the parties were "engaged in settlement discussions, and soon after the parody account tweeted and pinned a "statement" that certainly appears to be associated with the settlement:

Brian France was not and never has been associated, affiliated or in any way involved with this Twitter account or any of the content generated and/or posted by it. I will be permanently deactivating and deleting this account. I understand this account harmed Brian France and his family in ways never intended, and for that I am sorry.

And, to be clear: that's a bullshit resolution, but it shows how rich, powerful people abuse the courts with SLAPP suits to silence people, and they get help from law firms like Troutman Sanders in doing so.

Of course, if Brian France and his lawyers think they have a "victory" on their hands, they may find it to be a short-lived one.

Filed Under: 1st amendment, brian france, connecticut, drunk brian france, free speech, parody, slapp
Companies: nascar

Facebook Tells Court Laura Loomer's Defamation Allegations All Target Protected Opinions

from the speech-has-consequences,-Ms.-Free-Speech-Warrior dept

Last summer, alt-right "journalist" and no-scare-quotes buffoon Laura Loomer sued Facebook for uninviting her from its platform. According to her lawyer, the equally-buffoonish Larry Klayman, it was defamatory for Facebook to boot Loomer from the platform by designating her a "dangerous individual."

According to Loomer, her removal from Facebook entitles her to 5% of Facebook's net worth: roughly about $3 billion at the time of the suit's filing. Loomer sued in Florida but will now have to continue her lawsuit in California, where Facebook is actually located. And Facebook has fired back in its own filing, pointing out that designating users as "dangerous individuals" and performing other moderation activities is not only protected by Section 230 of the CDA, but by the First Amendment as well.

Facebook's motion to dismiss [PDF] says that decisions to label people as "dangerous individuals" is an expression of Facebook's opinion of that person and their posts -- something clearly protected by the First Amendment.

To the extent she alleges Facebook called her “dangerous” by removing her accounts pursuant to its DIO policy and describing its policy generally in the press, the law is clear that calling someone “dangerous”—or saying that she “promoted” or “engaged” in “hate”—is a protected statement of opinion. Even if it were not, Ms. Loomer cannot possibly meet her burden to prove that it would be objectively false to describe her as “dangerous” or promoting or engaging in “hate” given her widely reported controversial public statements. To the extent Ms. Loomer is claiming, in the guise of a claim for “defamation by implication,” that Facebook branded her a “terrorist” or accused her of conduct that would also violate the DIO policy, Ms. Loomer offers no basis to suggest (as she must) that Facebook ever intended or endorsed that implication.

Facebook states that Loomer was welcome to participate in the discovery process to find something that indicated the platform acted in bad faith by labeling her "dangerous." But she chose not to. And even if she had, it's unlikely she would have uncovered the defamation smoking gun she needs to continue suing Facebook.

At this stage, Ms. Loomer can no longer rely on the threadbare allegations in her complaint. Having failed to conduct discovery, there is no record evidence to suggest that Facebook subjectively knew she was not “dangerous” and/or did not “promote … hate.”

And, Facebook notes, we're not the only platform that believes Loomer is a net loss for third-party content providers, if not humanity itself.

Nor could she ever make this showing: given Ms. Loomer’s public statements and actions, and the fact that most major platforms have banned her for violating their policies, this is clearly an issue where, at a minimum, reasonable minds can disagree.

While Loomer has decided it's wise to continue a lawsuit without engaging in discovery, Facebook says there's plenty of evidence on the record -- including statements made by Loomer herself -- that her posts and actions violate the platform's terms of service, as well as those of other sites. The supposedly defamatory statements made by Facebook during its booting of Loomer are incapable of being proven false -- not when so much of Loomer's behavior makes them arguably true.

Facebook’s use of the phrases “dangerous” and “promotes hate” are “so debatable, loose and varying” in meaning that they are “insusceptible to proof of truth or falsity.” Ms. Loomer is, by her own admission, a controversial figure. She has called Islam a “cancer on society” and “cancer on humanity” and advocated laws prohibiting Muslims from serving in public office. She has advocated a “non Islamic form of [U]ber or [L]yft” so she doesn’t have to “support another Islamic immigrant driver.” She has described herself as a “#ProudIslamaphobe” and called Muslims “savages” on Twitter. And she has appeared with or expressed support for individuals who were previously banned by Facebook under its DIO policy for engaging in “organized hate.” While Ms. Loomer may not believe she is “dangerous” or has “promoted hate,” others disagree—as demonstrated by her admission that online platforms have widely banned her.

There's no way Loomer is going to win this lawsuit. But it probably doesn't matter much to Loomer and her lawyer. Klayman loves to handle performative lawsuits that do nothing for clients but allow them to preach to the converted using the federal court system as their pulpit. If that's all Klayman and his clients desire, even a loss can be considered a win. But a federal anti-SLAPP law would make these stunt lawsuits prohibitively expensive. And that's what this nation needs if we're going to rid ourselves of noisy nuisance lawsuits like these.

Filed Under: 1st amendment, content moderation, defamation, discovery, free speech, larry klayman, laura loomer, section 230
Companies: facebook