The Washington Post Thought It Might Be Nice To Provide Free Book Marketing To Insurrectionist Josh Hawley

from the zero-accountability dept

Let's be clear about something. The U.S. doesn't really do "accountability" particularly well. It's a major reason why we often repeat the same mistakes over and over again without learning much from history or experience. That's been made particularly clear by a U.S. press that continues to not only platform the insurrectionists who spread election fraud lies leading to the violent events of January 6, but treats these lies as valid and meaningful opinions. That, understandably, has led to concerns that it's going to happen again. But worse.

Case in point is the Washington Post, which this week decided, for whatever reason, to give Senator Josh Hawley oodles of free publicity for his latest book. Washington Post Live hosted Hawley as part of a chat, providing him ample free marketing for his book complaining about the "tyranny of big tech" (tyrannically sold by Amazon, and heavily marketed by Hawley on Twitter). Not only that, the Post couldn't be bothered to craft an accurate bio for Hawley, instead using the one provided by his publicist that paints Hawley in an aggressively inauthentic light:

Not too surprisingly, the Post marketing doesn't really bother to inform readers that Hawley's anti-monopolist credentials are largely nonexistent. Like most of the GOP, it's literally impossible to find an instance where Hawley, for example, so much as criticized a telecom monopoly. And, like most of the press, it's rare you'll find outlets like the Washington Post pointing out that a primary platform of the GOP for forty fucking years has been to encourage monopolization, whether we're talking about telecom, airlines, banking, or countless other marginally competitive and largely broken U.S. business sectors.

The GOP isn't engaged in histrionics over "big tech" because it genuinely cares about monopolization or unchecked corporate power. Decades of policy history make it abundantly clear that's not remotely true.

The GOP is angry at big tech because a handful of social media companies belatedly started policing disinformation and race-baiting, cornerstones of party power and recruitment in the face of an aging, sagging, and shifting electorate. There are plenty of very valid criticisms of "big tech," but the U.S. press seems incapable of acknowledging that many of the GOP's concerns on this front aren't entirely in good faith.

NYU journalism professor Jay Rosen has long lamented the U.S. media's obsession with the "view from nowhere," and how this undermines accountability while letting bad actors off the hook. Rosen wasn't particularly impressed with the Post offering free book marketing to a guy who just got done spending months filling the American public's heads with dangerous fluff and nonsense, and shows absolutely nothing that could be mistaken as contrition in the wake of January 6:

Even if you just want to ignore that Hawley's anti-corporate power and anti-monopolist credentials are nonexistent, it shouldn't be that hard to see how treating Hawley's (read: Trump's) lies as valid can easily help undermine accountability for recent attacks on democracy. And while the Post did challenge Hawley somewhat on his role in the insurrection, the very act of free marketing and platforming Hawley then gives him ample opportunity to muddy the waters and distort his actual role in triggering the events of January 6, which he happily proceeded to do:

Rosen wasn't the only media scholar to take issue with the Post's decision to give Hawley's book free marketing in the wake of his attacks on democracy:

Comedians routinely critical of the U.S. press also took issue with the Post's decision to provide free book marketing to Hawley:

Of course the folks most in need of hearing and understanding this message, didn't hear it at all. In reality, Hawley has been facing nonexistent to very light accountability for lying repeatedly about the 2020 election results, which put the very fabric of democracy at risk. But for the "cancel culture" set the very act of questioning the Post's failures of accountability and journalistic standards is itself somehow viewed as "censorship":

Again, light accountability for lying about the results of an election is not "censorship." And criticizing someone for spreading lies that put elected officials' lives at risk shouldn't be seen as "conservative." One major reason America keeps stumbling through the same issues over and over without learning anything from the experience is because for the ad-based, impression-obsessed U.S. press. It's more profitable to heavily market Hawley and enjoy the resulting controversy than it is to do the right thing and not platform his dangerous lies at all. The age-old internet concept "don't feed the trolls" isn't adhered to because adhering to it harms profits.

That doesn't mean the Post shouldn't cover him when he does something of note (like being the only Senator to vote against a hate crime bill protecting Asian Americans), but they don't need to be helping him sell a book five months after his lies contributed to numerous human deaths, normalizing his behavior and setting an ugly precedent for something even worse just over the horizon.

Filed Under: big tech, censorship, insurrection, josh hawley, journalism, news coverage, platforming, promotion
Companies: washington post

Donald Trump Caused The Techlash

from the 2016-election-was-the-tipping-point dept

In October 2016, I pitched USC a research proposal about the tech coverage’s non-investigative nature and the influence of corporate PR. I thought that at the end of this project, I’d have indictive documentation of how the tech media is too promotional and not tough enough. When I sat down to analyze a full year of tech coverage, the data presented quite the opposite. 2017 was suddenly full of tech scandals and mounting scrutiny. The flattering stories about consumer products evolved into investigative pieces on business practices, which caught the tech companies and their communications teams off guard.

Like any good startup, I needed to pivot. I changed my research entirely and focused on this new type of backlash against Big Tech. The research was based on an AI-media monitoring tool (by MIT and Harvard), content analysis, and in-depth interviews. I had amazing interviewees: senior tech PR executives and leading tech journalists from BuzzFeed News, CNET, Recode, Reuters News, TechCrunch, Techdirt, The Atlantic, The Information, The New York Times, The Verge, and Wired magazine. Together, they illuminated the power dynamics between the media and the tech giants it covers. Here are some of the conclusions regarding the roots of the shift in coverage and the tech companies’ crisis responses.

The election of Donald Trump

After the U.K.’s Brexit referendum in June 2016, and specifically, after Donald Trump became the president at the end of 2016, the media blamed the tech platforms for widespread misinformation and disinformation. The most influential article, from November 2016, was BuzzFeed‘s piece entitled, “This analysis shows how viral fake election news stories outperformed real news on Facebook.” It was the first domino to topple.

When I asked what was the story that formed the Techlash, all the interviewees answered, in one way or the other, that it was the election of Donald Trump. “Even though it wasn’t the story that people wrote about the most, it was the underlying theme.” Then, new revelations regarding the Russian interference with the U.S. election evolved into a bigger story. On November 1, 2017, Facebook, Google, and Twitter, testified in front of the U.S. Congress. The alarming effect was from combining the three testimonies together.

In the tech sector, there’s a sentence that you hear a lot: “change happens gradually then suddenly.” There were years and years of “build-up” for the flip, but the flip itself was in the pivotal moment of Donald Trump’s victory and the post-presidential election reckoning that followed it. The main discussion was the role of social media in helping him win the election.

If Hillary Clinton had been elected in November 2016, the Techlash might have been much smaller. “We would not have seen the amount of negative coverage. It is not just because almost every tech journalist is reflectively anti-Donald Trump; it is that almost every tech person is anti-Donald Trump.” As a result, Silicon Valley began to regret the foundational elements of its own success. The most dire warnings started to come from inside the industry as more sources spoke up and exposed misdeeds.

Then, in 2018, the Cambridge Analytica scandal unlocked larger concerns about social media’s influence and the careless approach toward user privacy. It also shed light on the fact that technology is progressing faster than consumers’ ability to process it and faster than the government’s ability to regulate it.

The companies’ bigness and scandals around fake news, data breaches, and sexual harassment

There were more factors at play here. It was also the tech companies’ scale and bigness, being too big to fail. All the tech giants are at a place where they are getting scrutiny, if nothing else, because of how big and powerful they are. On the one hand, growth-at-all-cost is a mandate. On the other, there are unforeseen consequences of that same growth.

According to the tech journalists, those unintended consequences are due to the companies’ profound lack of foresight. They were blind, and this blindness came back to bite them. Thus, it’s the companies’ fault for not listening to the journalists’ concerns.

However, the big data analytics and content analysis showed that focusing only on the post-election reckoning or the tech platforms’ growing power won’t fully explain the Techlash. A large number of events in a variety of issues shaped it. Their combination led to the “It’s enough” feeling, the mounting calls for tougher regulation, and the #BreakUpBigTech proposition.

We had cases of extremist content and hate speech, and misinformation/disinformation, like the fake news after the Las Vegas shooting; privacy and data security issues, following major cyber-attacks, like “WannaCry” or data breaches, like Equifax, but also at Facebook, Uber, and Yahoo, which raised the alarm about data privacy and data protection challenges; and also allegations of an anti-diversity, sexual harassment, and discrimination culture. It was in February 2017 that Susan Fowler published her revelations against Uber (prior to the #MeToo movement). It symbolized the toxicity in Silicon Valley. All of those time-bombs started to detonate at once.

The tech companies’ responses didn’t help

When I analyzed the tech companies’ crisis responses, I had different companies and a variety of negative stories, and yet the responses were very much alike. It created what I call “The Tech PR Template for Crises.” The companies rolled out the same playbook, over and over again. It was clear; big tech got used to resting on their laurels and was not ready to give real answers to tough questions. Instead, they published the responses they kept under “open in case of emergency.”

One strategy was “The Victim-Villain framing”: “We’ve built something good, with good intentions/ previous good deeds and great policies -but- our product/ platform was manipulated/ misused by bad/malicious actors.”

The second was pseudo-apologies: Many responses included messages of “we apologize,” “deeply regret,” and “ask for forgiveness.” They were usually intertwined with “we need to do better.” This message typically comes in this order: “While we’ve made steady progress … we have much more work to do, and … we know we need to do better.” Every tech reporter heard this specific combination a million times by now.

They said, “sorry,” so why pseudo-apologies? Well, because they repeatedly tried to reduce their responsibility, with all the elements identified in number one: reminder strategy (past good work), excuse strategy (good intention), victimization (basically saying, “We are the victim of the crisis”), scapegoating (blaming others). They emphasized their suffering since they were “an unfair victim of some malicious, outside entity.”

The third thing was to state that they are proactive: “We are currently working on those immediate actions to fix this. Looking forward, we are working on those steps for improvements, minimizing the chances that it will happen again.” It’s Crisis Communication 101. But then, they added, “But our work will never be done.” I think those seven words encapsulate everything. Is the work never done because, by now, the problems are too big to fix?

It is the art of avoiding responsibility

One way to look at the companies’ PR template is to say: “Well, of course, that this is their messaging. They are being asked to stop big, difficult societal problems, and that is an impossible request.”

In reality, all of those Techlash responses backlashed. Tech companies should know (as Spider-Man fans already know) that “with great power comes great responsibility.” Since they tried to reduce their responsibility, the critics claimed that tech companies need to stop taking the role of the victim and stop blaming others. The apology tours received comments such as “don’t ask for forgiveness, ask for permission.” The critics also said that “actions should follow words.” Even after the companies specified their corrective actions, the critics claimed the companies “ignore the system” because they have no incentive for dramatic changes, like their business models. In such cases, where the media push for fundamental changes, PR can’t fix it.

The Techlash coverage is deterministic

On the one hand, there’s the theme of: “We are at a point where the baby is being thrown out with the bathwater. There was a perhaps ridiculous utopianism. But it has become just as ridiculous - if not more so - on the flip side now, of being dystopian. The pendulum has swung too far” (Evil List articles, for example). On the other hand, there’s the theme of “Journalism’s role is to hold power to account. We are just doing our job, speak truth to power, reveal wrongdoing, and put a stop to it. Whoever is saying that the media is over-correcting doesn’t understand journalism at all.”

While I articulated both themes in the book, one of the concepts that helped me organize my thoughts was ‘technological determinism.’ In a nutshell, some argue that technology is deterministic: the state of technological advancement is the determining factor of society. Others dispute that view, claiming the opposite: social forces shape and design technology, and thus, it is the society that affects technology. I realized that we could describe the Techlash coverage as deterministic: technology drives society in bad directions. Period.

Then, perhaps what the few tech advocates are pointing out is that this narrative doesn’t consider the social context or human agency. A good example was the Social Dilemma. The tech critics targeted the scare tactics used to enrage people in a documentary filled with scare tactics used to enrage people. And they didn’t even notice the irony. Sadly, since they exaggerated and the arguments were too simplistic, they made it easier to dismiss the claims, even though they were extremely important. My fear here is that the exaggerations overshadow the real concerns, and the companies become even more tone-deaf. So, perhaps, we deserve a more nuanced discussion.

“It’s cool -- it’s evil” “saviors -- threats”

From the glorious days and the dot-com bubble to today’s Techlash, there were two pendulum swings; the first between “It’s cool” and “It’s evil,” the second between “saviors” and “threats.” Moving forward, I would suggest dropping them altogether. Tech is not an evil threat, nor our ultimate savior. The reality is not those extremes, but somewhere in the middle.

Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

Filed Under: donald trump, journalism, narrative, techlash

Iowa Journalist Cleared Of All Charges In Bullshit Prosecution Over 'Failure To Disperse'

from the that's-not-how-journalist---or-the-First-Amendment---works dept

The good news is that Iowa prosecutors' attempt to jail a journalist for being present at a protest has failed. Andrea Sahouri -- who was arrested while covering a George Floyd protest in Des Moines last summer -- has been acquitted of all charges by a jury. But the fact that she was prosecuted at all is still problematic.

Sahouri was arrested by Des Moines police officers while apparently walking away from the scene of a protest. Officers at the scene broadcast conflicting orders from their squad cars. While one loudspeaker told protesters to disperse, another told protesters to "protest peacefully." Officer Luke Wilson performed the arrest. Unfortunately, it took place out of view of nearby CCTV cameras. That shouldn't have been a problem since Officer Wilson was wearing a body camera. But he "forgot" to ensure it was recording before he began arresting people.

The prosecution of Sahouri was handled in bad faith. Prosecutors sought to bar any mention of her employment as a Des Moines Register journalist during the court case. They claimed this case had nothing to do with press freedom -- that it only involved someone disobeying a lawful order to disperse. They claimed this despite recordings of the PD's arrival on scene showing officers issuing conflicting orders to protesters.

Police body-camera video played at the trial showed protesters blocking Merle Hay Road near the Wingstop restaurant at about 6:30 p.m. The word “disperse” from police car loudspeakers is barely audible amid the crowd noise, and the crowd is also asked to protest peacefully. Officers on the street are heard saying “get back, get back,” and many people in the crowd are shown doing just that, backing away from the street.

But the judge was having none of this bullshit, even as the prosecution donned its gaiters and waded into it. Officer Luke Wilson may have failed to activate his camera but the footage still could have been salvageable. Instead, Wilson took affirmative steps to make sure it wasn't. That ended up hurting the prosecution's case.

It was disclosed at trial that the body cameras used by Des Moines police have a background recording function. Had Wilson notified his supervisor promptly of his failure to turn on the camera, video still could have been captured. In a rare move, the judge instructed jurors that they could consider whether Wilson intentionally destroyed evidence favorable to Sahouri.

The prosecution also tried to use Sahouri's own journalism against her. They claimed the photos she took of property damage to a nearby mall was evidence she had "failed to disperse." But journalists aren't necessarily subject to orders to disperse. And documenting newsworthy events is not the same thing as participating in them.

But the arrest did serve a limited purpose for the Des Moines PD: it deprived the public of documentation of their actions during their dispersal effort. Instead of having a neutral third party relaying info, the public was left with what police officers recorded on their cameras. And it's safe to say Officer Wilson wasn't the only officer who "failed" to record arrests and uses of force.

Fortunately, Sahouri has been cleared. But she should never have been charged in the first place. This may be a loss for prosecutors but it won't deter officers from acting in bad faith again when they're confronted with third parties recording their actions.

Filed Under: 1st amendment, andrea sahouri, des moines, failure to disperse, iowa, journalism

Civil Rights Groups Argue That Biden Should Drop Assange Prosecution; Noting That It Is An Attack On Journalism

from the do-it dept

It's easy to dislike and distrust Julian Assange. He's done many things to inspire both reactions. Still, it's important to separate out personal feelings towards the guy with the question of whether or not he broke US law with publishing the things he did via Wikileaks. For years, the Obama DOJ refused to indict him, in part due to the recognition that nearly all of Assange's activities were similar to the kinds of things that journalists do all the time. The Trump DOJ had no such restraint (even as some prosecutors warned of problems with the idea), and as we and others have pointed out the indictment is a huge threat to investigative journalism and things like source protection.

Now that Biden is President, a whole bunch of civil rights groups have sent a letter to Acting Attorney General Monty Wilkinson, asking him to drop the case against Assange. The letter notes that many of the signatories do not agree with Assange or Wikileaks, but that doesn't mean the case is a good one:

While our organizations have different perspectives on Mr. Assange and his organization, we share the view that the government’s indictment of him poses a grave threat to press freedom both in the United States and abroad. We urge you to drop the appeal of the decision by Judge Vanessa Baraitser of the Westminster Magistrates’ Court to reject the Trump administration’s extradition request. We also urge you to dismiss the underlying indictment.

The indictment of Mr. Assange threatens press freedom because much of the conduct described in the indictment is conduct that journalists engage in routinely—and that they must engage in in order to do the work the public needs them to do. Journalists at major news publications regularly speak with sources, ask for clarification or more documentation, and receive and publish documents the government considers secret. In our view, such a precedent in this case could effectively criminalize these common journalistic practices.

In addition, some of the charges included in the indictment turn entirely on Mr. Assange’s decision to publish classified information. News organizations frequently and necessarily publish classified information in order to inform the public of matters of profound public significance. We appreciate that the government has a legitimate interest in protecting bona fide national security interests, but the proceedings against Mr. Assange jeopardize journalism that is crucial to democracy.

Jameel Jaffer, who heads the Knight First Amendment Institute, which was on of the signatories on the letter, has written an article also detailing why the Biden DOJ should drop the case that is worth reading:

Of Trump’s many attacks on press freedom, however, it’s his Justice Department’s indictment of Julian Assange that could have the most significant implications over the long term. As I explained here and here, the Justice Department’s indictment of Assange focuses principally on activity that national security journalists engage in “routinely and as a necessary part of their work”—cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information. As a result, a successful prosecution of Assange would have far-reaching implications both for national security journalists and for the news organizations that publish their work. This isn’t an accident. It’s likely why the Trump administration filed the indictment, as Jack Goldsmith observed here.

President Joe Biden plainly does not share Trump’s attitude toward the press. But the Assange case will present the Biden administration with an early test. One of the first questions Biden’s new attorney general will confront is whether to authorize prosecutors to continue to contest the decision of the Westminster Magistrates’ Court, issued earlier this year, denying the United States’ request for Assange’s extradition. In an interview with NPR, the outgoing U.S. Attorney for the Eastern District of Virginia, Zachary Terwilliger, wondered whether the new administration would abandon the appeal. “Some of this does come down to resources and where you’re going to focus your energies,” Terwilliger noted.

Again, whether you agree with Assange's view of the world, or how you feel about Wikileaks' apparent decision to cozy up with Russians is a separate issue from whether the indictment itself is a threat to journalism. It is. And the new DOJ should drop the case. It would be unfortunately if Biden continued along the same path the Obama administration did in pretending that journalism is a form of espionage. Dumping the Assange suit would send a clear signal that Biden actually recognizes the value and importance of adversarial investigative journalism, even if it might embarrass him.

Filed Under: doj, espionage act, free speech, joe biden, journalism, julian assange

Louisiana AG Sues Journalists To Keep Them From Obtaining Documents Detailing Sexual Harassment By Top Prosecutor

from the The-Man-says-The-Man-will-not-be-releasing-records-about-The-Man dept

Another public official is attempting to make the public records request process even more aggravating and expensive than it already is.

In many cases, the public does what it's allowed to do: request records. And, in many cases, governments refuse to do what they're obligated to do. So, people sue. They dig into their own pockets and force the government to do what they were always supposed to do. And when they do this, the general public digs deep into their own pockets to pay government agencies to argue against the public's interests.

This is diabolical enough. It's also, unfortunately, the standard M.O. for government agencies. Pay-to-play. Every FOIA request is a truth-or-dare game played on a field slanted towards the government, which has unlimited public funds to gamble with.

But when just being dicks about isn't diabolical enough, government agencies and officials go further. When it's simply not enough to engage in litigation as defendants and argue against accountability and transparency, these entities go on the offensive.

That's right. Government agencies and officials occasionally engage in proactive lawsuits, daring the defendants (i.e., citizens making public records requests) to prove they're entitled to the documents. This shifts the burden away from the government and onto the person with limited funds and almost nonexistent power. It's no different than demanding millions for the production of PDFs. It's an option deployed solely for the purpose of keeping everything under wraps.

The latest participant in the "fuck the public and our obligations as public servants" is Louisiana's Attorney General.

Louisiana Attorney General Jeff Landry on Friday sued a reporter for The Advocate and The Times-Picayune over a public-records request she filed, asking a judge to issue a declaratory judgment denying the request and seal the proceedings.

The unusual action came a few days after the newspaper warned Landry that it intended to sue him if he didn’t turn over the requested records.

Welcome to Louisiana -- a state where government officials and employees don't even need to camouflage their desire to screw the people they're supposed to be serving because a whole bunch of local laws encourage this screwing. In this case, the AG undid the lawsuit threat -- one predicated on the state's refusal to hand over requested documents -- by firing off a lawsuit of his own. And just like that, the burden of proof needed to keep these documents out of the public's hands has been shifted to the public, as represented by the Times-Picayune.

One has to ask why the AG would need to keep these records hidden. There's alleged malfeasance afoot, and the sooner the public has some straight answers, the sooner this can be taken care of. The AG's decision to insert himself and his disingenuous lawsuit into the proceedings makes everyone involved look guilty... especially since the malfeasance is coming from inside the house.

The matter dates to Dec. 14, when the reporter, Andrea Gallo, first filed a public records request with Landry’s office seeking copies of sexual harassment complaints against Pat Magee, the head of the office’s criminal division, and records of how the complaints were handled. Magee was placed on administrative leave pending an investigation that day.

It's a terrible move in terms of optics. But it's a brilliant move if you care less about optics than protecting your government brothers (and, to a much lesser extent, sisters).

This is the sort of thing that would be greatly served by proactive transparency. Maybe the allegations are false. Maybe they're substantiated. But deciding to sue records requesters rather than turn over documents suggests it's the latter. And it suggests a cover-up in the works -- one that, at the very least, will allow the accused to resign before it can affect the accused's career or pension.

Optics matter. And they matter even before the facts are in. Being upfront with the people you serve generates goodwill -- something that's valuable to have in your pocket when government employees screw up. Suing the public before they can sue you says the public is subservient to their supposed public servants. It says the government would rather anger people and drain them of their money than engage honestly with the problem and carry out their obligations to the public.

This is garbage. But it's the same overheated garbage we've seen for years. And nothing will change as long as government agencies can use tax dollars to pay for legal arguments against transparency and accountability.

Filed Under: foia, jeff landry, journalism, louisiana, pat magee, sexual harassment, transparency

Snippet Taxes Not Only Violate The Berne Convention, But Also Betray The Deepest Roots Of Newspaper Culture

from the won't-someone-think-of-the-poor-Rupert-Murdochs? dept

Last week Techdirt wrote about Australia's proposed News Media Bargaining Code. This is much worse than the already awful Article 15 of the EU Copyright Directive (formerly Article 11), which similarly proposes to force Internet companies to pay for the privilege of sending traffic to traditional news sites. A post on Infojustice has a good summary of the ways in which the Australians aim to do more harm to the online world than the Europeans:

1) The protection for press publications provided by [the EU's] DSM Article 15 does not apply to linking or the use of "very short extracts." The Code explicitly applies to linking and the use of extracts of any length. Accordingly, the Code applies to search engines and social media feeds, not just news aggregation services.

2) The Code forces Internet platforms to bargain collectively with news publishers or to be forced into rate setting through binding arbitration. DSM Article 15 does not require any similar rate-setting mechanism.

3) The Code imposes burdensome obligations on the platforms, some of which directly implicate free expression. For example, platforms would need to provide news businesses with ability to "turn off" comments on individual stories they post to digital platforms. DSM Article 15 imposes none of these obligations.

4) The Code prohibits the platforms from differentiating between an Australian news business and a foreign news business. This provision prevents platforms from exiting the market by taking care not to link to Australian news content. If the platform links to international news content, e.g., articles from the New York Times, it must also link to (and therefor pay for) Australian news content. DSM Article 15 does not contain a non-differentiation provision.

The same blog post points out that these elements are so bad they probably violate the Berne Convention -- the foundational text for modern copyright law. Article 10(1) of the Berne Convention provides that:

it shall be permissible to make quotations from a work which already has been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

Although the Berne Convention doesn't have any mechanism for dealing with violations, Berne obligations are incorporated in the World Trade Organization's Agreement on Trade Related Intellectual Property Rights (TRIPS) and in the Australia-US Free Trade Agreement. Both of those offer dispute resolution that the US could use to challenge the Australian Code if and when it comes into effect. The proposed schemes to force Internet companies to pay even for quoting snippets of news not only violate the Berne Convention: they are also a betrayal of the deepest roots of newspaper culture. That emerges from a fascinating post by Jeff Jarvis, a professor at CUNY's Newmark J-school. He writes:

For about the first century, starting in 1605, newspapers were composed almost entirely of reports copied from mailed newsletters, called avvisi, which publishers promised not to change as they printed excerpts; the value was in the selecting, cutting, and pasting. Before them the avvisi copied each other by hand. These were the first news networks.

In the United States, the Post Office Act of 1792 allowed newspapers to exchange copies in the mail for free with the clear intent of helping them copy and publish each others’ news. In fact, newspapers employed "scissors editors" to compile columns of news from other papers.

In other words, these new snippet taxes are wrong at every level: practical, legal and cultural. And yet gullible lawmakers still want to pass them, apparently to protect defenseless publishers like Rupert Murdoch against the evil lords of the mighty Information Superhighway.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: australia, berne convention, copyright, google news, history, journalism, link tax, news, rupert murdoch, snippet tax
Companies: facebook, google

Appeals Court Tells Lying Cop No 'Reasonable' Officer Would Think It's OK To Tear Gas Journalists For Performing Journalism

from the pretty-much-as-clearly-established-as-something-can-get dept

For some reason, we, the people, keep having to shell out cash to employ a lot of unreasonable law enforcement officers.

We've already seen some federal courts respond to violent law enforcement responses to the mere presence of journalists and legal observers during protests. The targeting of non-participants by law enforcement has been met with injunctions and harsh words for the officers participating in these attacks.

Much of what's been covered here deals with months of ongoing protests in Portland, Oregon and violent responses by federal officers. But this appeals court ruling (via Mike Scarcella) shows the problem isn't confined to the Northwest or federal law enforcement. Cops are attacking journalists in other cities as they try to do nothing more than cover highly newsworthy events.

And the problem isn't new either. This case [PDF], handled by the Eighth Circuit Court of Appeals, deals with an attack on three Al Jazeera reporters covering protests in Ferguson, Missouri following the killing of Michael Brown.

Local law enforcement officers may not have been wearing cameras, but the journalists brought their own. The events that transpired were captured in the course of their attempted coverage of Ferguson protests. Fortunately, this footage exists. The version of events offered by the sued deputy is a lie. Here's what was captured by Al Jazeera cameras:

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred. Their video shows a calm scene. An unidentified officer begins shooting rubber bullets at them. They yell, identifying themselves as reporters. Anderson then deploys a single canister of CS gas (also known as “tear-gas”). It lands in front of the reporters. They move away from the camera, but can be heard talking in the background. An unidentified person walks past the camera. Other people stop in front of it. The police do not fire at them. One reporter re-appears in front of the camera, is shot at, and leaves. Another person walks past the camera (possibly the same unidentified person as before). A second group poses in front of the camera, thinking they are on CNN. They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera. Over a speaker, the SWAT Team appears to ask the reporters to “turn the spotlight off.” SWAT Team members then lay down the lights and turn the camera lens toward the ground. The reporters re-appear. After speaking to the officers, they pack their equipment and leave.

As the court notes, this narrative (the one captured by cameras) is "disputed." But it's only "disputed" because Deputy Michael Anderson (the defendant) would prefer to use an alternate history to exonerate himself.

Anderson claims the reporters were told to disperse and turn off the lights but refused. He also claims he saw projectiles launched from the area of the bright lights. He says he had difficulty seeing what was going on. He believes there was an imminent threat to safety. He stresses that his sergeant ordered him to deploy the tear-gas.

Submitted in support of this narrative is Anderson's sworn declaration that everything he said is true, even when nothing on record supports his version of the incident.

Before the SWAT Team arrived, the reporters counter that their location was a calm scene. The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.

The court doesn't call Anderson a liar. It might have, if other questions had been presented. It's limited to determining whether or not Deputy Anderson should be awarded qualified immunity. Once this returns to the lower court, Anderson will get another chance to prove he's not lying. It seems unlikely he'll be able to, but he is definitely going back to the lower court and is definitely going to have to defend himself against at least one allegation.

The Appeals Court says Anderson's actions clearly violated the reporters' First Amendment rights. No qualified immunity on this count.

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. See Duncan, 687 F.3d at 957. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

Even if the court were inclined to believe Anderson's apparent bullshit, he still wouldn't be granted qualified immunity.

Anderson is not entitled to qualified immunity even if his sergeant told him to deploy the tear-gas. Anderson cites the Heartland case for the proposition that §1983 “does not sanction tort by association.” Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 806 (8th Cir. 2010). True, but nothing in Heartland says that a government official is immune if a superior instructs him to engage in unconstitutional conduct. Instead, Heartland says that defendants must be individually involved in the unconstitutional act to be liable under §1983. Id. See also White, 865 F.3d at 1076 (“[A] plaintiff must be able to prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ”), quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, it is undisputed Anderson was involved. He is the one who deployed the teargas at the reporters.

The deputy argued the reporters weren't engaged in First Amendment activity. Instead, they were ignoring a dispersal order. Again, the court points to the recording which shows no dispersal order being given during the entirety of the incident. Even if one had been, there's no reason to assume a dispersal order requires reporters to leave the scene. Reporters reporting on newsworthy events are not engaged in unlawful activity.

The deputy also argued the plaintiffs were required to provide proof of his motive -- his alleged desire to retaliate against the reporters for engaging in protected activities. Wrong again, says the court. There's enough doubt in here a jury should examine it.

To support its conclusion that the reporters had alleged enough about causation to survive summary judgment, the district court noted that the videos show a peaceful scene interrupted by Anderson’s tear-gassing of the reporters, but not others. Quraishi, 2019 WL 2423321, at *7 (“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out—other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.) Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

And, again, the court highlights the video that shows a chain of events that contradicts Anderson's claims.

The district court’s summary judgment facts are not based on allegations of actions by unknown individuals. They come from videos showing Anderson deploying the tear-gas. As noted, the district court does not have to rely solely on Anderson’s account of events to discern what motivated him.

It is clearly established that firing tear gas at journalists to prevent them from covering newsworthy events is a violation of their rights, the Appeals Court says, rattling off a list of ten previous decisions reaching the same conclusion. Any assumption otherwise is unreasonable.

A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible.

Deputy Anderson is headed back to the district court to face the reporters' First Amendment allegations, as well as state-level excessive force claims. (The Appeals Court grants qualified immunity on the Fourth Amendment claims, noting that being tear-gassed is not a "seizure" as there is no detention or other form of police custody.) And it would seem he's destined to lose. His version of the events isn't supported by anything tangible. The other side has plenty of footage showing things didn't happen the way Deputy Anderson apparently wishes they would have happened. This isn't a "factual dispute." This is a recording contradicting a law enforcement officer's lies. Hopefully, the district court will further highlight this, shall we say, "disparity" upon his return.

Filed Under: 8th circuit, journalism, michael anderson, police, protests, qualified immunity, tear gas
Companies: al jazeera