NC Appeals Court Withdraws Its Horrendous, Free Speech-Damaging Opinion On Retaliatory Arrests

from the ctrl-z dept

Late last week, the North Carolina State Court of Appeals released an astounding decision. Ignoring a number of precedential rulings finding otherwise, the court decided it was okay for state law enforcement officers to engage in retaliatory arrests, so long as they could find something to charge a citizen with.

In this case, a car carrying a passenger who flipped the bird to a trooper engaged in a traffic stop was pulled over for… um… "disturbing the peace." Apparently, all hell was on the verge of breaking loose due to the enthusiastic bird-flipping in the direction of the officer. By the time the stop was over, the passenger was arrested for obstructing an officer. This was because the passenger refused to ID himself, which isn't actually a crime in North Carolina.

The court looked at this retaliatory traffic stop and eventual arrest and said, yeah, I guess it's "reasonable" to assume a drive-by birding is a criminal act in the making, even if the supposed initiating factor (the finger) was protected expression.

The dissenting opinion was the only reasonable thing about the decision. It pointed out one person's obscene gesture was highly unlikely to result in disturbed peace and that the traffic stop was nothing more than a fishing expedition to find something to charge the bird-flipping passenger with.

The dissent may soon become the official opinion of the court. Owen Barcala points out on Twitter that the Appeals Court has withdrawn the opinion. Here's what's up at the court's website instead of its ridiculously harmful take on the First Amendment.

IT IS HEREBY ORDERED that the opinion filed in this case on 6 August 2019 be withdrawn. The Clerk of the Court of Appeals is hereby directed not to certify said opinion. This cause is retained by this Court for disposition by the panel to which it is assigned…

So, good news is on the way, as it seems unlikely the court will reissue a new opinion that comes to the same conclusion, but with different words.

There's a theory out there that this opinion was ratioed to death by the universal scorn heaped on it by pretty much everybody, including actual lawyers with actual law degrees. Law prof Howard Wasserman thinks Twitter may have forced the court to reconsider its hot take on retaliatory arrests. His post on the swift withdrawal by the court suggests citizens should stay in their own lane and let the courts go about the business of reshaping the contours of the public's interactions with law enforcement without any outside input.

Today, the court of appeals withdrew the opinion, with the panel retaining jurisdiction to dispose of the case. No idea what that means. It could mean a majority will hold that the officer lacked probable cause to stop the case. Or it could mean a new opinion finding a basis for probable cause that does not involve constitutionally protected expression.

While this is good for the First Amendment, it is hard not to wonder how much the universal derision the opinion received on the interwebs affected the judges and their decision to reverse course (as to reasoning if not result). And it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Great idea. Let's just silo judges off from the public they serve. They should ignore all other input but their own to maximize their ability to act as a check against government overreach. This is a ridiculous take and hopefully Wasserman will follow it with a retraction of his own.

No one's suggesting judges should issue Twitter polls before ruling, but they're not incapable of making mistakes. When they do, they should feel the heat. If this nudges them towards reconsideration of a controversial ruling, we're all going to be a bit better off.

Filed Under: 1st amendment, free speech, middle finger, north carolina, police, reasonable, retaliatory arrests

The Pai FCC Is Oddly Quiet About Trump's Plan To Have The Agency Police Speech

from the selective-silence dept

So last week, you probably saw the leaked plan by the Trump administration to try and "fix" the nonexistent censorship of Conservatives on social media. According to the leak, a large part of the plan would involve having the FCC, which has no real authority in this area, police speech on platforms like Twitter and Facebook. Most legal experts I've spoken to say the plan is illegal and utterly nonsensical, and the FCC has no authority to do this under Section 230 or anywhere else. The order would also undermine most of the logic the Pai FCC used in its effort to repeal net neutrality.

Oddly though, an FCC that has been very vocal on this subject when convenient has been oddly mute since the story broke, with none of the agency's three Republican Commissioners (Ajit Pai, Brendan Carr, or Mike O'Rielly) making so much as a peep about the terribleness of the latest Trump "plan."

This kind of silence is uncharacteristic. O'Rielly, for example, was positively apoplectic recently when he proclaimed (falsely) that community broadband posed a dire threat to free speech. Carr has similarly expressed great disdain previously at the idea of government regulating speech on social media platforms, and hyperventilates over telecom sector free speech rights any time someone even faintly suggests giants like Comcast should be held accountable for decades of abysmal service:

Then there's Pai, who attacked net neutrality extensively by insisting it was the equivalent of the Fairness Doctrine, the exact type of solution Trump is now proposing for social media. Pai has routinely tried to play both sides of this debate, insisting he's a stalwart defender of free speech, yet demonizing platforms like Twitter for nonexistent censorship when it makes for a good sound byte. He's also repeatedly stated we can't possibly hold bumbling monopolies like AT&T and Comcast accountable on the state or federal level because it would violate their First Amendment rights (a belief those companies share).

All of this endless hand wringing over free speech, and yet when the President of the United States says he wants to use the FCC to police speech on social media (again with near zero authority to do so), all three of these free speech patriots are suddenly quiet.

And while you could argue that they didn't comment because the plan hasn't been made official yet, that didn't stop them from loudly deriding a similarly undercooked, leaked plan by the Trump administration to nationalize the nation's 5G networks. That plan was largely just the lobbyist brain fart of a Peter Thiel-backed company named Rivada Networks (supported by folks like Karl Rove and Newt Gingrich), yet Carr, O'Rielly, and Pai all had plenty to say about the unworkability of that plan (largely because such a plan is AT&T and Verizon's worst nightmare).

The trio's fellow commissioner Jessica Rosenworcel offered up what was probably the most concise reaction to having the FCC police Facebook and Twitter:

As many have surmised this could all amount to a giant hill of bupkis. The administration may have just been floating a trial balloon that has now, clearly, popped. After all, in the Trump era you can never tell what's serious policy and what's the passing brain fart of whoever has the President's ear at one particular moment.

Still, you'd think a trio of FCC Commissioners who proclaim to be champions of free speech would have had something to say about the plan given the scale of its stupidity. Yet they've refused to issue any comment whatsoever after more than a week. It's almost as if they're not actually being ideologically consistent, and are remaining mute simply out of blind partisan allegiance and support of Trump's clearly idiotic plan to blame social media for the fact that many people just can't stop being grifting assholes on the internet.

And while there's certainly plenty of very real problems with Facebook and Google (especially on the privacy front), it's been kind of overlooked in tech policy circles that a lot of the animosity in DC toward "big tech" right now originates with telecom giants eager to elbow in on Silicon Valley online ad revenues. It is, as they say, always about the money.

Filed Under: 1st amendment, administrative law, ajit pai, anti-conservative bias, bias, brendan carr, donald trump, executive order, fcc, free speech, michael o'rielly, policing speech, social media
Companies: facebook, google

'Free Speech Defender' Devin Nunes Sues More Critics, Promises More Such Lawsuits Are Coming

from the slappity-slapp-slapp dept

As we pointed out recently, last year, Devin Nunes co-sponsored a bill discouraging frivolous lawsuits. He also voted for a House Amendment to protect free speech. And then he started filing frivolous lawsuits against critics and the media for exercising their free speech rights to criticize (or even mock him). He sued Twitter and some satirical Twitter accounts, as well as a political consultant, Liz Mair, who has criticized and mocked Nunes. He also sued news giant McClatchy (and Liz Mair a second time) for writing an article he felt was unfair.

And, just this week he said he has more lawsuits planned:

“We have probably another three to five lawsuits that we’ll be filing and it’s all about, as you know, I’ve been maliciously attacked by the media. They’ve tied me to things that are just simply straight up defamation and slander,” he said. “If you go and Google right now, you do a Google search, virtually every story is either not true or it’s based off of a previous story that wasn’t true and so the only way I can clear my name up is through the courts.”

And, good as his word, he's already filed at least one of those lawsuits. As the Fresno Bee (the McClatchy paper he's suing over an earlier story) notes, Nunes (or, actually, his campaign) has filed another lawsuit against more of his critics:

Rep. Devin Nunes’ campaign is suing the people who accused the congressman of being a “fake farmer” and tried to get his ballot designation removed, alleging they conspired with “dark money” groups to injure the campaign.

The lawsuit, filed in Tulare County Superior Court on Thursday, alleges the group also targeted Nunes’ wife, Elizabeth, by seeking public records requests for her school emails that were costly to produce and resulted in harassment to innocent teachers and school administrators.

The Nunes campaign also accuses Andrew Janz’s congressional campaign of “mirroring” super PAC spending.

You can read the complaint here, which is filed by the same lawyer, Steven Bliss, as the previous two lawsuits. Notably, this lawsuit was filed in California state court. The previous two lawsuits were filed in Virginia, likely as a means of evading California's anti-SLAPP statute.

That's why it's quite interesting that this lawsuit was filed in California. Given that all the defendants are based in California, it's likely that Nunes recognized he couldn't file this case elsewhere -- though it might also explain why this case is filed by his campaign, rather than himself (as the other lawsuits were). However, it does mean that this case is absolutely subject to California's anti-SLAPP laws and could very well mean that Nunes' campaign ends up having to pay the legal fees, should it be judged to be a SLAPP suit. And this lawsuit has many of the hallmarks of a classic SLAPP suit. An elected official, a very public official, suing some critics for their speech criticizing him? Classic SLAPP.

In this case, the lawsuit is even stranger, as the campaign is -- get this -- arguing "tortious interference with business." Yes, he's arguing that his political critics have gotten in the way of the "business expectancies" of his campaign. Think about that.

The Defendants intentionally interfered with Plaintiff Nunes Campaign Committee's property rights, business expectancies and prospective advantages by, inter alia, devising, aiding, abetting and actively participating in the coordinated scheme to interfere with and injure the Nunes Campaign. The Defendants acted as stooges of Fight Back California and others, and used improper methods in furtherance of the conspiracy, including acts and practices that were, inter alia, unethical, oppressive, over-reaching, fraudulent, hostile, and sharp. Defendants knew and/or should have known that Plaintiff Nunes Campaign Committee?s relationship with the candidate Nunes would be disrupted by their acts.

43. As a direct result of the Defendants? tortious interference with Plaintiff Nunes Campaign Committee?s valid business expectations and prospective economic advantages, Plaintiff Nunes Campaign Committee suffered damage and incurred loss including, without limitation, loss of income and business, damage to its reputation, prestige and standing, disruption of its relationship with candidate Nunes, special damages, court costs, and other out- of-pocket expenses.

Dude. You're a politician in a political campaign. Of course those who oppose you are seeking to hurt your campaign. Just like your own campaigning sought to stop your opponent's campaign. He's literally suing because people who were against his candidacy engaged in practices that he deems to be "sharp." Isn't he part of the Republican Party that always mocks "snowflakes" who can't take "sharp" criticisms?

The rest of the lawsuit appears to be nonsense as well. The only other claim besides the tortious interference one is a laughable "conspiracy" claim. Yes, Devin, people were "conspiring" to elect someone else. If that violates the law, so does your own "conspiring" to win your campaign.

Beginning in June 2018 and continuing through November 6, 2018, the Defendants coordinated, combined, associated, agreed or acted in concert together and with others, including Fight Back California and one or more federal political campaigns, for the express purposes of injuring the Plaintiff Nunes Campaign Committee and intentionally and unlawfully impeding and interfering with the Plaintiff Nunes Campaign Committee's business. In furtherance of the conspiracy and preconceived plan, the Defendants and their agents knowingly engaged in a joint, coordinated scheme the unlawful purpose of which was to advance the goals of the dark money actually behind the so-called "ethics" complaints and Petition, interfere with Plaintiff Nunes Campaign Committee's efforts to support the Nunes candidacy, and "flip" the 22nd District.

He's literally suing over them filing an ethics complaint against him. This is like the quintessential version of what a SLAPP suit is -- one in which a public official sues a critic over petitioning the government. I'd be amazed if the defendants don't move to strike under California's anti-SLAPP law and seek their legal fees from Nunes' campaign.

Much of the rest of the filing is, as his previous ones, performative, rather than making any reasonable legal claims. Yes, sometimes in campaigns, those who disagree with you do things to try to make you look bad. And, yes, there are reasonable concerns about "dark money" in campaigns -- but I thought it was the Republicans who supported things like Citizens United and the ability to use Super PACs and dark money. Of course, what's amusing is how much this complaint's whining about "dark money" seem to mirror the complaints Nunes' critics make about dark money in his campaign. Indeed, last year, the group "Anybody But Nunes" put out a document raising questions about Nunes' fundraising practices. It calls for an FEC investigation into his own fundraising practices, highlighting an article that the FEC had started investigating his campaign for possible campaign finance violations, though those appear to be focused on a few donations that may have exceeded federal contribution limits.

Though, there are some other eyebrow raising points to look at. The Open Secrets page about how much Nunes' campaign has raised, sure is interesting. Which one of these is unlike the others:

Of course, in 2018, Nunes was in a much closer political fight than in previous election years -- and also was much more prominent in his role (at the time) as chair of the House Intelligence Committee. So, it certainly could be nothing, but to argue that people questioning that or filing complaints is somehow "tortious interference" or a "conspiracy" is crazy.

Furthermore, at least those critics did the right thing, asking the Federal Elections Committee to investigate, not suing in court. Nunes is making all these claims of potential violations of FEC or IRS rules regarding dark money, but this isn't requesting either agency to investigate -- it's suing the individuals for interfering in his campaign's "business expectancies."

A big part of the underlying story behind Nunes' complaint is that he's upset that his political opponents filed Freedom of Information Act requests to try to get emails from Nunes' wife, Elizabeth, who is an elementary school teacher. And, I completely understand why such filings would be upsetting and annoying. Indeed, there's been a lot of debate about how some have been using FOIA as something of a weapon against academics who work for public schools (usually universities). Technically, as government employees, their emails are subject to FOIA requests, but often times those requests are designed to be a burden, or to go fishing for dirt.

So I completely understand why Nunes is upset about the FOIA requests for his wife's emails. At the very least, that is a pretty dirty political campaign tactic. But if he's angry about it, as a Congressman, shouldn't he be focused on maybe changing the FOIA law that makes that practice legal. I, personally, wouldn't directly advocate for such a change -- I tend to lean on the side of more transparency via FOIA, rather than less -- but his real anger here seems to stem from the law being used properly. And he's in Congress. So if he doesn't like how FOIA laws operate, that's on him to propose a bill, convince his colleagues, and get it signed into law. Not go to court against those who used the law within its bounds in a way that he, personally, finds annoying.

Either way, it sounds as though Nunes is planning more of these lawsuits, which seems pretty damn hypocritical and thin-skinned for a politician who claims to be against frivolous lawsuits and in favor of free speech.

Filed Under: 1st amendment, anti-slapp, california, devin nunes, free speech, nunes campaign, politics, slapp, snowflake, tortious interference

SLAPP Suit In Virginia Tries To Silence Historian Highlighting Ancestry Of Guy Suing To Keep Confederate Statues In Charlottesville

from the free-speech? dept

Another day, another attempt by someone to silence people for saying something they don't like. The latest is a history professor, who was briefly quoted in an article about another lawsuit. That lawsuit? An attempt by some Virginia residents to stop the removal of some Confederate monuments in Charlottesville, Virginia. One of the plaintiffs in that case is Edward Dickinson Tayloe II. The article, written in the publication "C-Ville" (as you've figured out, a publication about Charlottesville) goes a bit into the history of the Tayloe family -- which goes back centuries in Virginia and apparently includes cotton plantation (and slave) owners.

The article contains two quotes from UVA history professor Jalane Schmidt. In the introduction to the article, she is quoted as saying the following about those who were suing to prevent the removal of Confederate monuments:

“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” says activist and UVA professor Jalane Schmidt.

Later, in the section about Tayloe, she is quoted again:

Says Schmidt, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”

This comes after multiple paragraphs describing, in fairly great detail, the history of the Tayloe family and what one might easily consider to be cruel treatment of slaves. It also includes slightly more recent history, regarding Tayloe's father, who, as the article notes:

... was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze the African American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.

Tayloe, it seems, was not happy about the article. So he sued C-ville, the reporter on the article (Lisa Provence), and Jalane Schmidt, the history professor. As the case is in a local Virginia court, the records are not as readily available as federal cases. However, the ACLU of Virginia has stepped in to defend Schmidt and has filed quite the response to what seems clearly to be a typical SLAPP suit -- seeking to silence someone for stating things you don't like.

As the filing notes, nothing in either of Schmidt's quotes is defamatory -- and, the filing claims, the complaint makes no effort at all to even show what statements are false statements of fact:

Plaintiff fails, as a threshold matter, to specify which of Professor Schmidt's words are allegedly defamatory.... Rather, he states that the alleged defamation occurs in the "implications" arising from the article.... Regarding Professor Schmidt's comment about the Tayloe family "roiling the lives of black people," Plaintiff takes issue with the context of the quotation ("Schmidt's assertion is offered without refutation or counterpoint") but fails to explain why the statement in and of itself is defamatory or has a defamatory implication

Ken "Popehat" White famously says that "vagueness in legal threats is the hallmark of meritless thuggery," and that appears to be the case here. Schmidt's quotes seem clearly to be giving her take -- her non-defamatory opinion -- on the history of Tayloe's family. Tayloe may not like that, but as an apparently proud American, he might want to thank the First Amendment for allowing that kind of free speech.

There is much more in the response, which you can read below, but this case should easily be tossed out. Even if someone were to make the case that the statements at issue were factual defamatory statements towards Tayloe, Tayloe would need to prove "actual malice" -- meaning that Schmidt knew the statement was false (which, she doesn't, since she stands by her words) or that they were made with "reckless disregard" for the truth. While the suit suggests that a failure to get Tayloe's side of the story is evidence of such negligence, that is not the standard at all, and there is no such requirement.

Thankfully, Virginia has a recently updated anti-SLAPP law that is now deemed to be "adequate" by the Public Participation Project (which advocates for better anti-SLAPP laws). Virginia's law should be a lot better and has some flaws, but hopefully it will be applied here. Schmidt and the ACLU of Virginia are seeking attorneys' fees under the statute, and hopefully they will succeed.

Notably, Schmidt has also written up a blog post for the ACLU talking about the chilling effects of these kinds of SLAPP suits.

Tayloe’s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern. These types of claims, known as strategic lawsuits against public participation, or SLAPP suits, are designed to silence, censor and intimidate critics with the threat of costly litigation.

[....]

History belongs to everyone, not just scholars. Marginalized narratives of vulnerable groups of our community must be included in our collective story in order to inform our efforts to make changes in the present and to promote a more just and equitable future. First Amendment protections should not be stifled by lawsuits designed to make anyone fearful of the consequences of exercising their rights.

Some may argue that there is nothing exceptional about this particular SLAPP suit. It appears similar to many others that we write about here on Techdirt. And that's a big part of the problem. These kinds of lawsuits create massive chilling effects, even if they won't win in court. It's also why we need much stronger anti-SLAPP laws, both at the state level and at the federal level. These kinds of lawsuits keep getting filed because the lawsuit alone is all too frequently enough to stifle critical voices.

Filed Under: 1st amendment, anti-slapp, charlottesville, confederate monuments, edward tayloe, free speech, jalane schmidt, slapp, virginia
Companies: c-ville

Court Dismisses Democrats' Nutty Lawsuit Against Russia, Wikileaks And Trump Associates

from the phew dept

A little over a year ago we wrote about a truly ridiculous lawsuit filed by the Democratic National Committee against the country of Russia, Wikileaks, the GRU, Julian Assange, the Donald Trump campaign, and a long list of Donald Trump associates, including Paul Manafort, Roger Stone, Jared Kushner, Donald Trump Jr. and more. As we discussed in great detail, this was a pro se-level lawsuit full of absolutely crazy legal theories that stood no chance in court, ostensibly over the hacking of the DNC's computers that occurred during the 2016 election. The complaint was mostly a conspiracy theory wrapped in a legal complaint, tossing in absolutely silly CFAA claims, SCA claims, DMCA claims and (because why not?) a RICO claim, despite the fact that it's never RICO.

We predicted that this lawsuit would go nowhere fast, and separately noted that many of the theories the DNC put into the lawsuit represented a very real threat to basic press freedoms. Thankfully, though not surprisingly, federal Judge John Koeltl, has dismissed the case. The order runs over 80 pages, but the judge does a nice job summarizing the many, many faults of the complaint upfront. Let's start with suing Russia. That's not how any of this works.

The primary wrongdoer in this alleged criminal enterprise is undoubtably the Russian Federation, the first named defendant in the case and the entity that surreptitiously and illegally hacked into the computers and thereafter disseminated the results of its theft. But, as explained below, under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. ("FISA"), the Russian Federation cannot be sued in the courts of the United States for governmental actions, subject to certain limited exceptions not present in this case, just as the United States government generally cannot be sued in courts abroad for its actions. The remedies for hostile actions by foreign governments are state actions, including sanctions imposed by the executive and legislative branches of government.

I mean, this seems like basic lawyering 101. You can't just randomly sue foreign governments in the US for state actions. How about all those other defendants? Well, they're not the ones who did anything. And the things they did -- publishing or sharing documents -- is so obviously protected under the First Amendment:

The DNC seeks to hold the second-level participants in this alleged activity -- the Campaign, the Campaign defendants, WikiLeaks, Assange, the Agalarovs, Mifsud, and Stone -- liable for dissemination of the stolen materials. But, as also explained below, the First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC. Therefore, for the reasons explained below, the defendants' motion to dismiss the Second Amended Complaint is granted.

The judge did reject a request by the Trump Campaign for Rule 11 sanctions against the DNC's lawyers, and even if this was obviously a frivolous lawsuit, courts are very, very reluctant to ever issue Rule 11 sanctions unless the activity is incredibly egregious. This dumb lawsuit was just everyday egregious.

The judge here clearly understood all of the myriad problems with the lawsuit, and the long ruling is a masterclass in pointing out how each of the DNC's theories is crazy. Let's start with the First Amendment/freedom of the press issues. It seems clear that the court understood how dangerous this kind of precedent would be. The judge cites the key cases on this issue which are pretty damn well established: the NYTimes v. the United States, which decided that it was protected by the 1st Amendment for the Times to publish the Pentagon Papers, and the more recent Bartnicki v. Vopper, which made it clear that even illegally obtained materials can be released by journalists, so long as the journalists did not participate in the illegal activities to obtain the materials. As the court notes:

As Bartnicki makes clear, there is a significant legal distinction between stealing documents and disclosing documents that someone else had stolen previously.

The DNC tried to get around this by playing the "but RICO!" card, and arguing that there was a grand conspiracy at work, that magically meant that the Trump Campaign and all the associates did participate in the "stealing" of documents. The judge points out this is... not a sound legal theory.

However, the DNC has not alleged that any defendant other than the Russian Federation participated in the hack of the computers or theft of the DNC's documents. The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the information show that the defendants conspired with the Russian Federation to steal and disseminate the materials.... That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint.

The judge further points out that just showing certain people met with one another or worked with one another doesn't automatically establish either a conspiracy or anything suggesting that they participated in the illegal obtaining of the DNC's content.

For example, the DNC argues in its opposition to the current motions that the conspiracy between the Russian Federation and the other defendants to hack the computers and steal its electronic information began in March 2016.... However, the only events alleged to have taken place in March 2016 are that Manafort was hired as the Campaign's convention manager, Papadopoulos was hired as a foreign policy advisor, and Papadopoulos met with Mifsud on March 14 and 24. The entirety of the allegations regarding the March meetings between Mifsud and Papadopoulos are that "[o]n March 14, 2016, Mifsud met with Papadopoulos in Italy," and "[o]n March 24, 2016, Mifsud met again with Papadopoulos, this time bringing along a Russian national who was introduced as a relative of Putin." ... Papadoponlos reported back to the Campaign that "his conversation was to arrange a meeting between us and the Russian leadership to discuss U.S.-Russia ties under President Trump." These vague references to meetings between Papadopoulos, a foreign policy advisor to the Campaign, and Mifsud, a London-based academic not officially affiliated with the Russian Federation, do not raise a plausible inference that the defendants agreed to participate with the Russian Federation in hacking the computers and stealing its documents.... To the contrary, Mifsud is alleged to have told Papadapoulos about emails harmful to the Hillary Clinton campaign only after the Russian Federation had hacked the DNC and had those emails in its possession.

The section on Wikileaks shows just how awful the DNC's case really was -- as their own complaint undermined their own argument.

The DNC also repeatedly argues in its brief that WikiLeaks participated in the theft of the DNC documents.... But in the Second Amended Complaint the DNC alleges that WikiLeaks first requested stolen DNC materials from Guccifer 2.0 only after the Russian Federation had already stolen them and after Russian agents began disseminating them through Guccifer 2.0.... The Second Amended Complaint does not allege that WikiLeaks agreed to participate in the theft or that it had any advance knowledge that the Russian Federation was planning to hack the DNC.

The court also points out that the infamous "meeting at Trump Tower" that has been subject to much speculation, happened after the DNC hacking had already occurred, meaning that it couldn't possibly have been held to establish a conspiracy to hack the DNC (and, of course, the DNC has no evidence to suggest, and thus, no allegations, to say that there was any discussion at that meeting of hacking the DNC). In other areas the judge points out that allegations "are even more threadbare." As we said, this is a conspiracy theory disguised as a legal complaint.

In short, the DNC raises a number of connections and communications between the defendants and with people loosely connected to the Russian Federation, but at no point does the DNC allege any facts in the Second Amended Complaint to show that any of the defendants other than the Russian Federation participated in the theft of the information. Nor does the DNC allege that the defendants ever agreed to help the Russian Federation steal the documents. Indeed, the DNC does not raise a factual allegation that suggests that any of the defendants were even aware that the Russian Federation was planning to hack the DNC's computers until after it had already done so. At most, the DNC has alleged that after the Russian Federation stole the documents, Mifsud and the Agalarovs told campaign members about the stolen documents (although it is unclear whether the communications were about stolen DNC documents or generally about documents harmful to Hillary Clinton), WikiLeaks requested the stolen documents and published them, and some of the other defendants welcomed the publication of the documents at times helpful to the Campaign.

And thus, the actions of the others in passing around or publishing those documents later is quite clearly protected under the 1st Amendment.

The judge does separately deal with the issue of Wikileaks. This was the one that most concerned press freedom advocates, and the judge clearly understands the issues:

The argument for liability is strongest against WikiLeaks because it is the only defendant other than the Russian Federation that is alleged to have published the stolen information. The DNC alleges that WikiLeaks solicited stolen documents from the GRU and then coordinated with the GRU and the Campaign defendants to publish the stolen documents at times helpful to the Trump Campaign. Like the defendant in Bartnicki, WikiLeaks did not play any role in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern. However, the DNC argues that this case is distinguishable from Bartnicki because WikiLeaks solicited the documents from the GRU knowing that they were stolen and coordinated with the GRU and the Campaign to disseminate the documents at times favorable to the Trump Campaign. The DNC argues that WikiLeaks should be considered an after-the-fact coconspirator for the theft based on its coordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them. Indeed, in Bartnicki the Supreme Court noted that the radio host either did know, or at least had reason to know, that the communication at issue was unlawfully intercepted....

And, contrary to the argument, it is also irrelevant that WikiLeaks solicited the stolen documents from Russian agents. A person is entitled publish stolen documents that the publisher requested from a source so long as the publisher did not participate in the theft.... Indeed, the DNC acknowledges that this is a common journalistic practice.

The argument that WikiLeaks can be held liable for the theft as an after-the-fact coconspirator of the stolen documents is also unpersuasive. That argument would eviscerate Bartnicki; such a rule would render any journalist who publishes an article based on stolen information a coconspirator in the theft....

WikiLeaks and its amici argue that holding WikiLeaks liable in this situation would also threaten freedom of the press. The DNC responds that this case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, "asking foreign intelligence services to steal 'new material' from American targets." ... The argument misconstrues its own allegations in the Second Amended Complaint. In the Second Amended Complaint, the DNC states that "WikiLeaks sent GRU operatives using the screenname Guccifer 2.0 a private message, asking the operatives to "[s]end any new material [stolen from the DNC] here for us to review.'" ... This was not a solicitation to steal documents but a request for material that had been stolen. Journalists are allowed to request documents that have been stolen and to publish those documents.... Therefore, the DNC cannot hold WikiLeaks or Assange liable for publishing the information that Russian agents stole.

The court then rejects the DNC's argument that "trade secrets" (by which it meant donor lists) are somehow excluded from Bartnicki, and therefore publishing them is not protected by the 1st Amendment. As the court explains, this is a pretty blatant misreading of Bartnicki, which acknowledged that there could be a different calculus when it involved things like trade secrets -- whereas the DNC pretended that Barnicki outright excluded them. Either way, the court says that in this case, the publishing of donor lists is obviously protected by the 1st Amendment:

In this case it is plain that the conclusory allegations that "donor lists" and "fundraising strategies" were among those documents published by WikiLeaks does not provide a basis to overcome the First Amendment. The interest in keeping "donor lists" and "fundraising strategies" secret is dwarfed by the newsworthiness of the documents as whole....

If WikiLeaks could be held liable for publishing documents concerning the political financial and voter-engagement strategies simply because the DNC labels them "secret" and trade secrets, then so could any newspaper or other media outlet. But that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern. The published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election. This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers....

And, as basically anyone with a passing familiarity with how RICO works expected, the court also explicitly rejects the whole RICO nonsense:

The allegations provide no basis to infer either that the alleged AIF members formed an ongoing organization or that the defendants formed a coherent entity that was separate and apart from the predicate acts that allegedly comprise the alleged fraudulent scheme....

This is, in part, because the DNC alleges in conclusory fashion that various individuals and entities have committed acts to further the scheme despite not having any apparent connection to most of the other defendants. The DNC asserts only that there were scattered contacts between the alleged AIF members and does not assert any facts suggesting hierarchy or organization. For example, none of the asserted AIF members are alleged to have participated in the theft of the documents with the Russian Federation or to have even been aware that the Russian Federation was planning such a theft. The Russian Federation published at least some of the documents via Guccifer 2.0, and there is no allegation that any of the defendants participated in that publication. WikiLeaks contacted the GRU to obtain the stolen documents, but there is no indication that any of the other asserted AIF members were aware of this contact.

There's also this:

Moreover, the alleged common goal of the AIF enterprise to get Donald Trump elected is not an unlawful or fraudulent goal.

The final claims in the complaint are dismissed pretty quickly as well. Wiretapping? Wha...? For it to be wiretapping, it has to involve recording something as it happens ("intercepted contemporaneously with transmission") and that did not happen:

There is no allegation that any of the documents provided to WikiLeaks contained communications that were intercepted contemporaneously with transmission. The documents that the Russian Federation disclosed to WikiLeaks are described as reports and documents rather than items that would suggest electronic communications that were recorded simultaneously with their transmission.... In any event, there is no allegation that WikiLeaks was aware that any documents it published were intercepted contemporaneously with transmission.

The Defend Trade Secrets Act claim flops as well. The earlier discussion about publishing trade secrets being protected by the 1st Amendment mostly covers that, but the claim makes even less sense for the other defendants:

The DNC does not allege that any defendant other than the Russian Federation and WikiLeaks possessed or published its alleged trade secrets. However, the DNC argues that the remaining defendants are still liable under the DCUTSA because they "used" the documents after they had been published by WikiLeaks and the Russian Federation. This argument is untenable -- a "trade secret that becomes public knowledge is no longer a trade secret."... That the defendants might have used documents that had already been published by the Russian Federation and WikiLeaks is not an unlawful or improper use of the documents.

As for the computer hacking claims, again, only the Russians did that, and you can't bring them into a US court. The DNC tried to argue that there was "aiding and abetting" by the others, but (1) they then "failed to allege facts showing any defendant aided or abetted the hack into the DNC computer systems," and (2) it doesn't appear that the Virginia Computer Crimes Act (the local state version of the CFAA) even includes liability for aiding and abetting. But, hey, why would that stop the DNC?

The court doesn't even seem to bother with the rather insane copyright claim, which was based on DMCA 1201 -- the anti-circumvention part of the DMCA, in which the DNC argued that the DMCA 1201 acted as a sort of mini-CFAA, because any activity to get around "technical protection measures" is automatically infringing under 1201. But, that theory is so nuts it looks like the court just skipped right over it.

Again, none of this is surprising, but it's nice to see a clear and decisive ruling on this -- and one hopes the DNC and its lawyers just let this one go rather than trying to appeal (a wish that seems unlikely to be fulfilled). It's possible this case is more about politics than any legal theory (because there is no reasonable legal theory here), but if so that's even more abusive of the federal judicial system.

Filed Under: 1st amendment, conspiracy, donald trump, free speech, freedom of the press, hacking, jared kushner, julian assange, paul manafort, rico, russia
Companies: dnc, wikileaks

Court Tosses Lawsuit Claiming Muting A Runescape Character Violates The First Amendment

from the as-one-does dept

Here's a bit of a weird one: a First Amendment lawsuit over the "muting" of a player's character. (h/t Volokh Conspiracy)

Amro Elansari -- in a handwritten complaint [PDF] -- contends Jagex Inc., the company behind Runescape, violated loads of rights and other things when it apparently muted his character back in March of this year. The allegations include discrimination, violations of his free speech rights along with his due process rights, and other "adverse action."

He claims he was muted for no reason and without notification -- this despite being a "streamer + 2000 hours + invested." He also claims this happened while he was streaming and that viewers witnessed this egregious violation of multiple rights as it happened. Elansari's lawsuit asks for the court to order the "mute" removed and whatever else a jury might find proper to award him.

Obviously, there's nothing the judicial system can do for him.

To start with, Elansari is suing a (UK) company for violating his (American) rights. Even without these particular modifiers, there's nowhere Elansari can go with this. He's suing a private company for violating his Constitutional rights -- something that's almost impossible for a private company to do. Especially First Amendment rights, which can only be violated by the government.

Early on in the order [PDF], the court notes there's no federal claim it can even attempt to handle given the particulars of the allegations.

[Elansari] cannot state a constitutional claim against a private company precluding him [from] amending to assert a federal question.

It gets a bit more particular a couple of pages later:

While he alleges Jagex Inc., an entity located in the United Kingdom, muted and denied his appeal, these allegations cannot state a plausible constitutional claim.

Now, pay attention everyone lining up to sue social media platforms for moderating them.

The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.

The same goes for the due process claims. Only the government can violate these rights. For a private company to violate the Fifth Amendment, it has to be working in concert with the government when the violation occurs. Obviously, a Runescape muting does not involve state actors -- not even UK-located ones.

I know our civics textbooks said nice things about the judicial system and the redress of grievances, but sometimes a (legal) complaint is just a (regular) complaint. The plaintiff gets to bitch a bit and the court just kind of nods along like a tolerant bartender until closing time.

The only place Elansari comes out ahead is at the cash register. The court grants his request to file without paying fees, but the only thing that does is keep him from falling farther behind.

Once again with feeling:

The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.

Some people out there need this tattooed to the inside of their eyelids… or at the very least, across the foreheads of their legal representation.

Filed Under: 1st amendment, amor elansari, free speech, muting, runescape
Companies: jagex