Judge Unseals, Tosses Warrant Used By The San Francisco PD To Obtain A Journalist's Phone Records

from the have-fun-sleeping-in-the-fucked-up-bed-you-made,-SFPD dept

Back in May, the San Francisco Police Department raided the home of a local "stringer," hoping to discover who had leaked a sensitive police report to the journalists. This raid violated the state's journalist shield law and the First Amendment. Since it was obvious the source of leaked document was an SFPD officer or employee, the raid was also incredibly stupid… unless the real point of the show of force was to discourage journalists from publishing leaked documents.

It took a few days before the SFPD police chief was willing to condemn the raid. According to the chief, the still-unseen affidavit glossed over the target's occupation -- an omission that likely would have seen the warrant application tossed if it had been included.

Speculation about the contents of at least one of the warrants is about to come to an end. The judge overseeing stringer Bryan Carmody's challenge of the warrant has ordered the affidavit to be unsealed.

“The search warrant will be unsealed with the exception of one portion,” San Francisco Superior Court Judge Rochelle East said in court.

One paragraph of the 11-page warrant must be blacked out to protect the identity of a confidential police informant. The unsealed file will be released by July 23 at 10 a.m. to attorneys for three press advocacy groups and a freelance journalist whose home was raided by police.

The same judge has also declared the warrant invalid. Matthew Keys has more details at the California Globe:

A judge in San Francisco tossed a search warrant she issued against a freelance journalist in May, saying police did not disclose to her that the target of the warrant worked in the news media industry.

The ruling, handed down in San Francisco County Superior Court, means materials gathered from the home and office of journalist Bryan C. Carmody cannot be used as evidence against him or anyone else as police continue their investigation into the leak of documents and photographs related to the death of former San Francisco Public Defender Jeff Adachi.

Unfortunately, this only takes care of one of the warrants targeting Carmody. This one sought phone records linked to the numerous cellphones Carmody owns. The other warrants -- targeting Carmody's home and office -- are still being challenged.

The good news is those warrants are likely to meet the same fate. It's highly unlikely the affidavits attached to those search warrants included the fact that the target was a journalist. Two more hearings are set to discuss those warrants, but it seems pretty clear from the ruling here that SFPD officers lied to a judge (or judges) to get around the state's shield law.

If those hearings go the same way, the SFPD will lose all the evidence it collected during its bullshit raid. It won't have anything to use against Carmody, but it seems unlikely a prosecution would even be pursued at this point. But a stack of bad warrants also invalidates anything it might have wanted to use against the employee who leaked the document. The SFPD probably should have kept its internal investigation internal, rather than bring it to the doorstep of a journalist's house.

Filed Under: 1st amendment, 4th amendment, bryan carmody, investigation, journalism, phone records, san francisco, sfpd, warrant

LAPD Infiltrated An Anti-Fascist Protest Group Because The First Amendment Is Apparently Just A Suggestion

from the 'let's-prove-their-point!'-the-Major-Crimes-Division-exclaimed dept

Maybe the LAPD doesn't have the experience its counter-coastal counterpart has in inflicting damage to rights and liberties, but it's trying, dammit! The NYPD's brushes with the Constitution are numerous and perpetual. The LAPD may have spent more time working on the Fourth and Fifth Amendments during its Rampart peak, but now it's rolling up on the First Amendment like a repurposed MRAP on a small town lawn.

The Los Angeles Police Department ordered a confidential informant to monitor and record meetings held by a political group that staged protests against President Trump in 2017, a move that has drawn concern and consternation from civil rights advocates.

On four separate occasions in October 2017, the informant entered Echo Park United Methodist Church with a hidden recorder and captured audio of meetings held by the Los Angeles chapter of Refuse Fascism, a group that has organized a number of large-scale demonstrations against the Trump administration in major U.S. cities, according to court records reviewed by The Times.

Perhaps no entities show more concern about opposition to fascism than law enforcement agencies, for some weird and completely inexplicable reason. Somehow, this investigation involved the Major Crimes Division, which felt the need to get involved because of all the major criminal activity that is the hallmark of protest groups.

What sort of major crimes are we talking about? Well, let's just check the record…

Police reports and transcripts documenting the informant’s activities became public as part of an ongoing case against several members of Refuse Fascism who were charged with criminal trespassing…

I see the term "major" has been redefined by the Major Crimes Division to encompass anything it might feel the urge to investigate. Supposedly, this incursion on the First Amendment was the result of an "abundance of caution" following reports of violent clashes between anti-fascists and alt-right demonstrators at other protests/rallies.

Again, the LAPD seems to not understand the meaning of the words it uses, because an "abundance of caution" should have resulted in steering clear of First Amendment-protected activities, rather than infiltrating them.

Also, an abundance of caution might have resulted in the LAPD checking out the other set of theoretical combatants, but the Los Angeles Times reports a police official said no attempt was made to infiltrate any far-right protest groups.

"Major." "Caution." "Consistency." These words are beyond the department's comprehension. And here's the kicker: the Major Crimes Division did not send its informant in until after the demonstration was already over, the freeway had already been blocked, and criminal trespassing charges had already been brought. This wasn't an investigation. It was a fishing expedition targeting people who don't like fascists that used the First Amendment as a doormat. Calls to the LAPD's Irony Division were not returned.

I guess we're all supposed to feel better about this now that the LAPD has promised to investigate itself over its First Amendment-infringing infiltration. But it seems a department that routinely struggles to use words properly and cannot steer clear of the Constitutional shoreline shouldn't be trusted to run a fax machine, much less an internal investigation.

Filed Under: 1st amendment, activism, antifa, free speech, lapd, major crimes, protests, refuse facisism, surveillance

For All Of Trump's Complaints About Social Media 'Censorship', The White House Itself Moderates Content Similarly To Social Media Sites

from the oh,-look-at-that dept

As you may have heard, a couple weeks ago, President Trump hosted what he called a "social media summit," where he brought in various Trump-supporting social media people, and where they all got to whine about the completely made up concept of anti-conservative censorship on social media sites (and, because I know the same three of you are going to show up in the comments and scream your heads off that I'm being blind to such censorship: you have yet to show any actual evidence to support your claims -- and, no, a few anecdotes of trolls, assholes, revisionists and propagandists being blocked does not actually prove your point). Trump gave a long speech at that event, most of which made literally no sense. However, he seemed pretty damn sure that social media sites are censoring conservatives.

But we run out of here… Shadow-banned, a hundred percent. You look at what’s going on. You know, I could go… The blocking, just the basic blocking of what we want to get out. The fact that they don’t let them join. They don’t. There was…. There’s no doubt in my mind that I should have millions and millions…

I have millions of people, so many people I wouldn’t believe it. But I know that we’ve been blocked. People come up to me, and they say, “Sir, I can’t, I can’t get you. I can’t follow you. They make it impossible.” These are people that are really good at what they do. They say they make it absolutely impossible. And you know we can’t have it. We’re not going to let it happen.

Josh, we’re not going to let it happen. And you know, if they did it on both sides, if it were done to the other side, to the other group… And I’m representing everybody. I do, I represent everybody. I fully understand liberal. I fully understand Democrat. We want to get along. We want to make sure that everybody loves each other, if that’s possible. And maybe, I really believe it is.

Also, during the talk, he briefly admitted that he understands why sites have kicked off some of these people before then going back to saying it's unfair:

Of course, as Charles Duan notes at the Washington Examiner, if the White House is really upset about social media platforms kicking people off, it might want to check its own house first. Because on the "We The People" petition site, the White House itself appears to take a surprisingly similar approach to that of the big social media companies.

Or consider We the People again. Surprisingly, the White House petition site has a stringent content moderation policy, prohibiting petitions for commercial endorsements, obscenity, profanity, and “degrading slurs.”

And, from there, he notes that this policy might actually violate the 1st Amendment, given that it is a government site, and the government cannot engage in viewpoint discrimination. Indeed, after last month's Supreme Court ruling that said that it was viewpoint discrimination for the US Patent and Trademark Office to reject trademarks on "immoral and scandalous" marks, following a similar ruling from two years ago barring the rejection of "disparaging" remarks, it's difficult to see how banning petitions that have "degrading slurs" would actually pass Constitutional muster.

But, really, that's an aside to the larger point, which is that in practice the Trump administration appears to be more willing to kick bigots and racists off its own platform than the Obama administration was.

How that policy has been applied is even more concerning. In 2017, a white nationalist group alleged that the We the People content moderator had removed the group’s petition on college funding. I have no love for white nationalists, but kicking them off a White House petition page is plainly viewpoint-based censorship. Ironically, the group noted that the Obama administration had allowed the same petition, so it was the Trump White House that was censoring far-right views.

That links takes you to a white nationalist page whining about the "We The People Moderator" (seriously) rejecting a petition to "defund anti-white colleges that censor criticism of white genocide."

In other words, Trump's own White House is doing exactly the kind of moderation that Trump's own White House is attacking Silicon Valley companies for.

Duan's article makes a further point: if Trump and the White House (or Senators Ted Cruz and Josh Hawley) are really so concerned about the lack of social media sites "respecting" the First Amendment (which they, as private companies, are not bound by), there is literally nothing stopping the White House or Congress from setting up their own sites that would be bound by the First Amendment, as a government project.

Yet if Trump, Cruz, and others want a politically neutral, unbiased platform, there’s a simple solution: They should make one. Call it “freespeech.gov” and guarantee that all ideologies will be treated equally.

[....]

Perhaps counterintuitively, a public social media service actually fits right in to the government’s traditional role. In the real world, traditional public forums include streets, parks, and town halls — all government-run property. Such venues are perfect for political neutrality because the First Amendment demands it. Officials can restrict the time, place, and manner of speech on public grounds, but they cannot discriminate among viewpoints. The village park of Skokie, Illinois, must be as open to neo-Nazis as anyone else.

A freespeech.gov platform would be a virtual public square, so the First Amendment itself would prohibit anti-conservative or other bias. Contrast this to Republicans’ currently favored approach of legislating political neutrality on platforms. Private platforms are emphatically not public forums, as the Supreme Court has explained, and worse yet, this neutrality legislation might be an unconstitutional compelled-speech mandate.

Little stands in the way of building freespeech.gov. The government has its digital consultancies 18F and the U.S. Digital Service to produce the technology. It has already created the “We the People” White House petitions website, a virtual public square where hundreds of thousands of users call for everything from deporting Justin Bieber to building a Death Star. A freespeech.gov site would likely be popular as well — after all, what teenager could resist sharing dank memes under a .gov URL?

This is a valid point all around. If Trump, Hawley and Cruz insist that there needs to be a social media platform that is "neutral," the only place they actually have the Constitutional authority to make that happen is on a site set up by the government itself.

And then, as it appears the Trump administration (and the President himself) recognize, they might finally "understand" why these sites kick people off.

So, the next time you see any government official whining on about private companies not hosting all speech, there's a simple response: the government has the power (and even the skills) to do it itself. The only reason not to, of course, is if this is all stupid political grandstanding and an attempt to "work the refs" into getting social media sites to leave up harassers, abusers, trolls, and propagandists who just happen to be supporting the President and his allies.

Filed Under: 1st amendment, anti-conservative bias, content moderation, donald trump, free speech, trolls

Appeals Court Shoots Down The Unconstitutional 'Non-Disparagement' Clauses Baltimore Attaches To Lawsuit Settlements

from the court-says-it-won't-be-a-bagman-for-hush-money dept

When the City of Baltimore agreed to settle with a victim of police brutality, it inserted the usual clauses that come with every settlement. There was the standard non-admission of wrongdoing, along with a "non-disparagement" clause the city's attorney told courts was used "in 95% of settlements" to prevent those being settled with from badmouthing the entity they sued.

Ashley Overbey received a $63,000 settlement from the city for allegations she was beaten, tased, verbally abused, and arrested after calling officers to her home to report a burglary. When a local newspaper published a story about the settlement, the City Solicitor chose to disparage Overbey by saying she was "hostile" when the police arrived at her home. As the comments filled up with invective against Overbey, she showed up in person to fire back at her detractors, claiming the police had been in the wrong and detailing some of the injuries she suffered.

The City -- which had chosen to skew public perception against Overbey by commenting on the settlement -- decided Overbey's defense of herself violated the non-disparagement clause. So, it clawed back half of her settlement -- $31,500 -- for violating its STFU clause.

Overbey sued again, claiming this clause violated her First Amendment. Now, seven years after police showed up at her home and treated like the perpetrator -- rather than a victim -- of a crime, the Fourth Circuit Court of Appeals has ruled [PDF] these non-disparagement clauses are unconstitutional bullshit.

The City argued Overbey's acceptance of the clause was actually an action of free expression. By opting for a payout, she was (and I am quoting the City here) "exercising her right not to speak in exchange for payment." Alternatively, it argued that even if it was an unconstitutional waiver of rights, the court has no reason to intercede and nullify the clause.

The court agrees that it's a waiver of rights, but disagrees about what it's allowed to do about it:

We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void.

It goes on to point out that the government has no business compelling speech -- i.e., violating someone's decision to not speak about something. But that's not what's going on here. The clause penalizes settlement recipients for choosing to speak, which is definitely not Constitutional.

Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake in this case. No one tried to compel Overbey to make speech she did not want to make; no one tried to punish Overbey for refusing to say something she did not want to say. Instead, Overbey agreed, on pain of contractual liability to the City, to curb her voluntary speech to meet the City’s specifications. In doing so, she waived the First Amendment protections that would have otherwise shielded her speech from government sanction.

While it is possible for people to voluntarily waive their rights in certain situations, the discussion of a settled lawsuit isn't one of these situations. Especially not when it deals with issues of considerable public interest, like allegations of police misconduct and abuse. The clause inserted into settlement agreements also drives a wedge between public agencies and the public they serve, contributing to the omnipresent distrust. In a case like this, the only purpose the clause serves is to silence speech the government doesn't like.

Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” Citizens United, 558 U.S. at 340. This mistrust is one of the “premise[s]” of the First Amendment, id., and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when the government (1) makes a police-misconduct claimant’s silence about her claims a condition of settlement; (2) obtains the claimant’s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking.

That unconstitutionality voids the clause.

Accordingly, we conclude that enforcement of the non-disparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.

The court has zero patience for the City's exhausting arguments about how unfair this is to the City:

As the City would have it, Overbey “sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.” Id. at 39. Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.

The City will now have to give back the other half of Overbey's money. You can't beat the hell out of the First Amendment and expect to cash out. Litigants in Baltimore -- and elsewhere in the circuit -- have been freed to discuss the details of their cases in public without fear of reprisal. Hopefully, this will reduce the percentage of settlements with gag orders from 95% to 0% very quickly.

Filed Under: 1st amendment, 4th circuit, ashley overbey, free speech, non-disparagement

Former Content Moderator Explains How Josh Hawley's Bill Would Grant Government Control Over Online Speech

from the not-a-good-idea dept

Daisy Soderberg-Rivkin, who used to work at Google as an in-house content moderator, has written a fascinating piece for the Washington Times, explaining just what a disaster Josh Hawley's anti-Section 230 bill would be for the internet. As we've discussed, Hawley's bill would require large internet companies to beg the FTC every two years to get a "certificate" granting them Section 230 protections -- and they'd only get it if they could convince 4 out of 5 of the FTC Commissioners that their content moderation efforts were "politically neutral."

Soderberg-Rivkin points out how that will stifle the kind of "clean up" efforts that most everyone -- especially folks like Senator Josh Hawley -- often claim they want when they complain about all the "bad stuff" on social media. Remember, just before introducing this bill, Hawley was whining about all the bad and dangerous content on social media. Except, under his own damn bill, social media sites would be forced to keep that content up:

Under the Hawley bill, the FTC would audit major platforms’ moderation practices every two years to determine whether those practices were “biased against a political party, political candidate or political viewpoint.” In practice, this would look something like this: A few FTC auditors would walk into a technology company and declare the beginning of the audit. They would comb through tens thousands of removals decisions, looking for those that are “politically biased” — a process that could take, at minimum, weeks to complete.

In the meantime, content moderators would hold back on their take down procedures because no one could really tell them how “politically biased” is interpreted. In other words, disinformation, Nazi propaganda and white supremacist videos would fester on the Internet. If a moderator fails this test, not only would they be fired, but thousands of lawsuits and fines would come tumbling down on the company.

At my former job, I tried to keep in mind that while I had to look at horrific content, thanks to my efforts, many others would not have to. Yet in a world where this bill passes, I would sit down at my same desk, take a deep breath and prepare myself to look at terrorist executions, aftermaths of mass shootings and hatred-motivated violence — but this time, with full knowledge that I had absolutely no control over its distribution.

To some extent, this gets at the weird mental pretzel logic Senators like Hawley keep twisting themselves into. They complain about all the bad stuff online... and think that the way to deal with that is to remove the one law that makes it possible for companies to design plans to moderate away that bad stuff.

Filed Under: 1st amendment, content moderation, free speech, government control, josh hawley
Companies: facebook, google, twitter

The CIA Wants To Make It Easier To Jail Journalists And No One In Congress Is Stopping It From Happening

from the CIA-wondering-why-we-just-can't-go-back-to-zero-accountability dept

The CIA is pushing for an expansion of a 37-year-old law that would deter journalists from covering national security issues or reporting on leaked documents. Thanks to a disillusioned CIA case officer's actions in 1975, there are currently a few limits to what can or can't be reported about covert operatives working overseas.

In 1975, Philip Agee published a memoir about his years with the CIA. Attached to his memoir -- which detailed his growing discontentment with the CIA's clandestine support of overseas dictators -- was a list of 250 CIA agents or informants. In response to this disclosure, Congress passed the Intelligence Identities Protection Act (IIPA), which criminalized disclosing the identity of covert intelligence agents.

The IIPA did what it could to protect journalists by limiting the definition of "covert agent" to agents serving overseas and then only those who were currently working overseas when the disclosure occurred. It also required the government to show proof the person making the disclosure was "engaged in a pattern of activities intended to identify and expose" covert agents. The law was amended in 1999 to expand the coverage to include covert agents working overseas within five years of the disclosure.

Now, the CIA is seeking to strip these protections from the IIPA. The agency wants the "overseas" requirement removed, allowing it (and other intelligence agencies) to designate whoever they want as "protected" by the IIPA in perpetuity. The removal of the overseas requirement eliminates the five-year period. Disclosing identities years after the fact will now be a criminal act.

The CIA has its reasons, as Trevor Timm reports. But they're the worst reasons.

Under the proposed law, any journalist who, say, revealed the names of “covert” CIA officers that had engaged in torture or ordered drone strikes on civilians would now be subject to prosecution — even if the newsworthy actions occurred years or decades prior or the officer in question has always been located in the United States.

In fact, the CIA explicitly referenced the revelations of the agency’s Bush-era torture program in its argument to Congress for IIPA expansion. The New York Times’s Charlie Savage obtained the CIA’s private memo in which it lobbied members of Congress. Under the memo’s “justification” section, the CIA wrote:

"Particularly with the lengths organizations such as WikiLeaks are willing to go to obtain and release sensitive national security information, as well as incidents related to past Agency programs, such as the RDI investigation, the original congressional reasoning mentioned above for a narrow definition of ‘covert agent’ no longer remains valid."

RDI is the CIA's preferred term for its torture program. It stands for "Rendition, Detention and Interrogation." If the law is amended, the scope of its coverage expands, and the public gains nothing from it. Issues like drone strikes and torture programs need all the sunlight they can get. The CIA -- and other intelligence agencies -- would prefer the general public not know what's being done in their name with their tax dollars.

Unfortunately, someone who has stood up for the press for years is allowing this amendment -- attached to the 2020 budget bill -- to move forward. Rep. Adam Schiff -- the co-founder of the Congressional Caucus for Freedom of the Press -- has done nothing to push back against this expansion of the IIPA.

Here, Schiff has a direct means to protect journalists from what’s sure to be a clear and present danger: He could refuse to insert the provision the CIA has requested into the intelligence bill. Instead, at least so far, he’s done the complete opposite.

As Timm points out, Schiff may be big on press freedom, but he's even bigger on surveillance state boosterism.

Sadly, when you take a good look at his record, Schiff has always favored the secrecy of intelligence agencies over journalists’ rights. Just a few weeks ago, he pushed Democrats to vote down a bill that would cut funding for one of the NSA’s controversial surveillance programs that collect Americans’ data without warrants.

If this amendment becomes law, reporting on covert activities will be something only criminals do. It will make it that much easier to punish journalists for printing facts. This comes at a time when the presidential administration has expressed open hostility towards journalists and the act of journalism and the Commander-in-Chief has called for the return of torture programs. Schiff -- like all of our representatives -- has a duty to protect the public from self-serving laws that encourage government misbehavior. Like far too many others, he's apparently convinced the security of the nation is more important than the people residing in it.

Filed Under: 1st amendment, adam schiff, cia, covert agents, free speech, iipa, journalism

ESA Steps In With Amicus Brief In Support Of Activision Versus Humvee

from the hum-dinger dept

A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.

As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.

AM General LLC’s (“AM General”) lawsuit raises issues of substantial importance to the video-game industry. Today’s video games are exceptionally diverse in their artistic expression, ranging from the action-adventure of Activision’s Call of Duty franchise, to educational games like Where in the World is Carmen San Diego?, to sports-themed games like Madden NFL, to historical simulation games like the Civilization franchise, to games that are derived from motion pictures like Star Wars or that inspire motion pictures like Assassin’s Creed. Whether factbased, fictional, or somewhere in between, many of these games refer to or incorporate real-life historical and cultural elements – often including real products like the military vehicles at issue in this case, and the trademarks, trade dress, and other distinctive elements used to accurately identify and depict those products – to create realistic interactive environments that facilitate expression, enhance verisimilitude, and enrich the user experience.

If AM General succeeds in punishing Activision for exercising its First Amendment right to depict realistic U.S. military vehicles in Call of Duty – or in forcing Activision to endure the burdens of a trial to vindicate its First Amendment rights – ESA’s members and gamers will suffer. Video-game developers and publishers will be exposed to even more frequent litigation, with some developers and publishers foregoing the use of real products in their works to avoid being dragged into court. Because AM General’s theory is antithetical to the rights of ESA’s members – and is irreconcilable with well-settled authority governing the use of real products in expressive works – ESA respectfully requests that this Court grant Activision’s motion for summary judgment.

There are many reasons why AM General's lawsuit should fail, but the risk to artistic output must certainly be first and foremost. The idea that a storied vehicle used in American warfare could be blocked from being depicted in artistic expression over intellectual property rights is purely antithetical to the First Amendment. What I suspect is happening here is something else that regularly annoys me: the dismissal of video games as artistic expression. After all, it's not as though we've heard about many fights between the Humvee people and the film industry. And, yet, the number of depictions of Humvees in TV and film is countless. So why should Call of Duty be any different?

The ESA brief makes this point in the brief.

VIDEO GAMES ARE CULTURALLY SIGNIFICANT EXPRESSIVE WORKS Since the creation of the first electronic game in the 1950s – a highly pixelated version of tic-tac-toe entitled Noughts and Crosses3 – video games have evolved into complex works that are similar to interactive movies. Video games equal books, films, and television shows in terms of cultural significance and share myriad elements with these more traditional forms of expression. Like novels, many video games have multi-dimensional characters, complex storylines, and carefully crafted dialogue. Like films and television shows, many video games contain story arcs, visual images, and musical scores that contribute to their emotional impact.

Video games have become an integral part of American culture. In 2018, nearly 165 million adults in the United States played video games, and 75 percent of all Americans had at least one gamer in their household.

In other words, Call of Duty is every bit as much art and culture as Saving Private Ryan, in which case it is afforded all of the same First Amendment and fair use protections as that movie. Given that, the use of a Humvee is pretty clear fair use in an expressive work. If found to be otherwise, the gaming industry writ large is in a whole lot of trouble, particularly for any game that wants to depict realism.

But I don't think it'll get that far.

Filed Under: 1st amendment, art, call of duty, humvee
Companies: activision, am general, am general llc, esa

SPLC Asks Court To Toss Proud Boy Founder's Defamation Lawsuit By Asking 'Where's The Lie?'

from the suing-the-libs-to-own-the-snowflakes-or-something dept

A few months ago, Proud Boys founder (and Vice co-founder) Gavin McInnes sued the Southern Poverty Law Center over a bunch of negative things it said about him and the "western chauvinist" group he founded. The SPLC designated the Proud Boys as a "hate group," citing lots of hateful things its members have said/participated in.

As is the wont of far too many "free speech warriors" who believe free speech means everyone else shutting the hell up and letting them spew their ignorance, Gavin McInnes decided the opinion of the SPLC was actionable libel. It isn't. Not even in Alabama. Unfortunately, the state has no anti-SLAPP law, so the SPLC must defend itself against McInnes' ridiculous claims with almost zero hope of recovering any of its legal costs.

If you want to know everything wrong with McInnes' claims, Mike Masnick's very thorough post goes into great detail about the stupidity of the lawsuit, the hypocrisy of McInnes and his legal rep (Ron Coleman), and disingenuousness of attempting to use government force to silence certain people's opinions while pretending you're so very worried about the state of free speech in America.

To sum up briefly, McInnes claims the SPLC's "hate group" claim rises above mere opinion because… some people might agree with the SPLC's assessment of the Proud Boys. McInnes, as the founder of the Proud Boys, claims this has harmed him directly, as have a number of allegedly-defamatory claims made about him directly by the SPLC.

The SPLC's motion to dismiss [PDF] has been filed. So has a supporting brief [PDF] further shredding the dubious claims and legal illogic of McInnes' lawsuit. (h/t Andrew Fleishman)

It's a fun read, at least for those who recognize McInnes' lawsuit for the utter bullshit it is. It's always entertaining to watch litigious jackasses get torn apart by their own words and this motion to dismiss does not disappoint. The best defense against defamation allegations is the truth. And McInnes has given the SPLC legal reps plenty to work with.

Several of the challenged statements are non-actionable because, as the allegations of the Complaint itself reveal, they are substantially true. See generally Addendum. For example, McInnes claims to be defamed by a statement that members of the Proud Boys marched in Charlottesville with Richard Spencer. Compl. ¶ 286. The same paragraph of the Complaint in which that claim is asserted also acknowledges that the Proud Boys “expelled four members for attending the event.” Id. It is, therefore, concededly (and literally) true that Proud Boys members marched in Charlottesville, as did Richard Spencer. [...]

Similarly, McInnes claims to be defamed by being described as an “Islamophobe,” Compl. ¶ 239, but he does not (and cannot) dispute that he has referred to himself in precisely that manner in published interviews. And while McInnes denies calling Asian American “‘slopes’ and ‘riceballs’ on FOX News or the VDARE website,” Compl. ¶ 256, this statement is substantially true as well. As McInnes well knows, an article under his byline used precisely these slurs to describe Asian Americans—albeit in Taki’s Magazine, rather than on VDARE. A statement that McInnes called Asian Americans “slopes” and “riceballs” in Taki’s Magazine would have absolutely the same effect on a reasonable reader as an assertion that he did so on VDARE. Accordingly, the challenged statement is substantially true as a matter of law.

McInnes also claims he's been defamed by things the SPLC said about the Proud Boys -- a group he admittedly founded (but has now sort of disowned). He attempts to stretch these statements that are not directly about him to be directly harmful to him (and, of course, defamatory). But, as the SPLC points out, McInnes doesn't even attempt to deny the truthfulness of the statements made about the Proud Boys.

This conclusion is buttressed by the innumerable statements that McInnes does not challenge. These statements include, first and foremost, the voluminous primary source materials directly cited or linked to in the Articles themselves—i.e., the Proud Boys’ and McInnes’s own statements and conduct. To take just the most obvious example, the Complaint does not challenge a single specific statement made on the SPLC Proud Boys Page, which, through hyperlinks and other citations, cogently and extensively lays out SPLC’s case for why it considers the Proud Boys to be a hate group. McInnes’s failure to grapple with the Proud Boys Page alone demonstrates that the overarching thrust of SPLC’s publications about him and the Proud Boys would be the same with or without the statements on which he bases the Specific Claims.

If these are substantially true, they cannot be defamatory, even if McInnes feels his reputation has been tarnished by his association with the group by the SPLC.

The ones quickest to call others "snowflakes" for being offended by others' words are filing lawsuits over hurt feelings. McInnes' past is filled with words and deeds that would lead many to deem him "hateful." That he formed a group that engages in the same sort of bigoted speech McInnes does is no one's fault but McInnes'. There are consequences to uttering speech others find objectionable. Those consequences are not legal causes of action.

Filed Under: 1st amendment, defamation, free speech, gavin mcinnes, truth
Companies: splc

'Deep Fake' Legislation Is On The Way, Threatening Free Speech Protections

from the how-do-you-solve-a-problem-like-AI-making-Maria-sing-DJ-Assault-tracks dept

The proliferation of deep fake videos is going to start having an effect on First Amendment protections. Hint: it's not going to make these protections any stronger.

"Deep fake" may be easier to define than "fake news," but that doesn't mean there won't be collateral damage. The issue isn't a new one. Faking reality has been around nearly as long as reality itself. Cheap tools that make this anyone's game is the only thing new. Before we had deep fakes, we had Photoshop and its imitators.

Video used to be the last bulwark of truth. It couldn't be faked easily. But this too has been abused for years. Editing video to make it show what the editor wants it to show is a tactic that has been used for years. Now, however, tools make it possible to put new words in peoples' mouths, as was demonstrated to devastating satirical effect when a video of Facebook founder Mark Zuckerberg was tricked out to make it appear as though Zuckerberg was promising to swallow every user's data and privacy.

This is prompting legislators to act. Concerns over the potential of deep fakes to mislead people or, in some cases, destroy the unwitting participant's reputation, are leading to the production of legislation from people not entirely sure what they're dealing with.

Apparently shaken by a deep fake video of former president Barack Obama calling President Trump a "dipshit" and Housing Secretary Ben Carson "brainwashed," a California assemblyperson is pitching anti-deep fake legislation. Ben Christopher of CalMatters has the details:

“I immediately realized, ‘Wow, this is a technology that plays right into the hands of people who are trying to influence our elections like we saw in 2016,’” said Assemblyman Marc Berman, a Democrat whose district includes Silicon Valley.

So Berman, chair of the Assembly’s election committee, has introduced a bill that would make it illegal to “knowingly or recklessly” share “deceptive audio or visual media” of a political candidate within 60 days of an election “with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.”

This bill may be narrowly-crafted to target only perceived election interference, but that still isn't enough to ward off possible Constitutional problems. For one, this law would punish anyone "knowingly" sharing something "deceptive." The problem is the word "deceptive." It doesn't just cover deep fakes that put words in candidates' mouths. It would also cover videos edited to show candidates in a bad light by taking comments or statements out of context. This has never been illegal before. Just because tech is allowing people to do scary new things with video processing tools is no reason to start criminalizing common campaign tactics.

Unsurprisingly, this legislative effort is opposed by the ACLU, EFF, and two major California journalism organizations. The news publishers point out this effort will do damage to protected speech while doing almost nothing to ensure election integrity.

[W]hitney Prout, staff attorney with the publishers’ association, called the bill “an ineffective and frankly unconstitutional solution that causes more problems than it solves.” She warned that, if enacted into law, it could discourage social media users from sharing any political content online, lest it be a fake and they be held legally liable. Another possible consequence, she said, is that campaigns plaster every attack ad with a deepfake disclosure to shield themselves from lawsuits, leaving the voting public even more confused.

This issue isn't going to go away though, and it's inevitable laws will be passed to try to curtail the harm caused by deep fakes. At the federal level, the discussion has gotten a bit hyperbolic, with senators calling deep fakes a threat to national security, and when those words are used to justify Congressional action, the American public always comes out on the losing end.

Filed Under: 1st amendment, california, deception, deep fakes, free speech, intent, legislation, marc berman