Federal Court Dismisses Another Negligence Suit Against Online Gun Marketplace Armslist But Says Section 230 Doesn't Protect It

from the it's-a-win...-but-what-is-it-worth? dept

Two years ago, the Wisconsin Supreme Court handed down a pretty important decision, only somewhat tempered by its limited jurisdiction. It decided Section 230 immunity applied to the buying and selling of guns via a third-party platform, Armslist.

Survivors of a mass shooting in Wisconsin tried to hold Armslist directly responsible for the criminal act, arguing that the site's facilitation of sales that bypassed local regulations on gun sales (mainly background checks) allowed the shooter to arm himself illegally. The shooting may have been on the mass shooter, but Armslist was apparently an accomplice because its marketplace allowed someone who shouldn't have had access to guns to acquire one.

The plaintiffs hoped to bypass Section 230 immunity with arguments that centered on negligence. The Copia Institute (a Mike Masnick joint) filed an amicus brief on behalf of Armslist, asking the court to reject arguments that would carve some very damaging holes in Section 230 protections.

The court found in favor of Armslist, specifically citing Section 230.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint.

Another court has found in favor of Armslist. And again, the case involves a tragedy: the killing of someone using a weapon purchased through Armslist. Unfortunately, the federal court handling this case says Section 230 has nothing to do with Armslist securing a dismissal. While it doesn't weaken any Section 230 protections, it certainly doesn't add anything either, ensuring lawsuits brought against third-party platforms will still have to pay to defend themselves from accusations that they're culpable for the criminal actions of their users. (h/t Volokh Conspiracy)

The plaintiff, Richard Webber, sued Armslist after a gun purchased on the site was used to murder his daughter. The underlying incident is horrific. This is from the Wisconsin federal court decision [PDF]:

As a result of Armslist’s design decisions and business practices, Plaintiff alleges, Schmidt’s estranged husband, who was prohibited from owning a firearm under Wis. Stat. §§ 941.29(1m)(g), 813.25 and 18 U.S.C. § 922(g)(8), was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Shortly thereafter, Schmidt’s estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother’s house to drop off her three children. Schmidt’s estranged husband then committed suicide in the backyard of the house. Plaintiff alleges that, but for Armslist’s failure to enact adequate safeguards, and but for Armslist’s conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt’s estranged husband would not have been able to purchase the firearm that he used to kill her.

From that tragedy arose a list of alleged violations and harms, including common law negligence, civil conspiracy, and wrongful death -- all pursued under Wisconsin state law but handled by a federal court.

After deciding it has jurisdiction to preside over state law claims, the court details why it thinks Section 230 does not apply to this case -- one that involves a buyer and a seller utilizing the marketplace created by Armslist, but does not involve any direct action by Armslist.

In dismissing Armslist's Section 230 immunity defense, the court cites not only Justice Clarence Thomas (who holds some… questionable… views on Section 230) but also quotes the Seventh Circuit's misreading on how the "Good Samaritan" clause of the law has been applied by platforms.

But even setting aside the tricky task of discerning legislative intent, it is the text of the statute from which a court should draw its true meaning. Subsection (c) is entitled “protection for ‘good samaritan’ blocking and screening of offensive material.” As the Seventh Circuit has noted, this title is “hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services.” Doe, 347 F.3d at 660. Furthermore, nothing in the text of § 230(c)(1) indicates an intent to provide sweeping immunity for providers or users of interactive computer services who face claims based on their own misconduct.

The "Good Samaritan" clause does not encourage a hands-off approach. It actually encourages vigorous moderation efforts by ensuring platforms cannot be sued for removing content platform owners find objectionable, rather than limiting themselves to clearly illegal content.

From these, it gets worse. The court decides this lawsuit isn't about the action of two third parties who utilized a platform to perform an illegal gun sale. It says this is about Armslist being less than cautious about who it allows to utilize the service, shifting the culpability from the murderer and the party closest to the act of murder (the person who sold him the gun) one more step up the chain to the platform that merely allowed people to sell and buy guns.

Even if § 230 applies to this type of case, Plaintiff’s claims do not seek to treat Defendants as the “publisher or speaker” of the post in question. Here, Plaintiff seeks to hold Defendants liable for their “role in developing or co-developing [their] own content.” Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users’ identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. In essence, the complaint “focuses primarily on Armslist’s own conduct in creating the high-risk gun market and its dangerous features,” not on the post in question. This type of claim, then, does not seek to treat Defendants as the “publisher or speaker” of the post that led to Schmidt’s killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. 47 U.S.C. § 230(c)(1). For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case.

But having successfully dodged Section 230 immunity isn't enough to find Armslist culpable for the actions of a person who purchased a gun through the site. There's nothing that connects the violent act to Armslist other than the weapon used to commit it. And, as the court points out, if it wasn't a gun purchased on Armslist, it might have been a gun purchased elsewhere… or any weapon at all, given the facts of this case.

It is clear from the complaint that Schmidt was shot and killed by her estranged husband, not Defendants, with a handgun he purchased from another party, again not Defendants. Based on the facts alleged, there is no reason to believe that even if Schmidt’s estranged husband had not purchased a gun from a person who posted an advertisement on the Armslist website, Schmidt would still be alive. Armslist is hardly the only source of guns in this country, and one does not even need a gun to take another person’s life. Schmidt was killed by a person so determined to take her life, so consumed by hatred, that he was even willing to take his own. The likelihood that such a person would have found another source from which to obtain a firearm or another way to take Schmidt’s life is more plausible than Plaintiff’s claim that she would still be alive. Absent cause, Plaintiff’s negligence claim against Defendants fails.

Armslist escapes. But not by much. And the decision doesn't bolster Section 230 protections. Instead, it encourages litigants to pursue esoteric claims in hopes of bypassing immunity, rather than be forced to confront the fact they're seeking to hold a platform responsible for the violent acts of its users. That fact alone should have given Section 230 immunity better consideration than it received here. And it's pretty disheartening to hear federal courts quoting Justice Clarence Thomas' unhinged (but published) dissenting rants about a law he clearly doesn't respect, much less understand.

Filed Under: guns, liability, secondary liability, section 230, wisconsin
Companies: armslist

Want To Understand Why U.S. Broadband Sucks? Look At Frontier Communications In Wisconsin, West Virginia

from the do-not-pass-go,-do-not-collect-$200 dept

So for years I've noted if you really want to understand why U.S. broadband is so crappy, you should take a long, close look at Frontier Communications in states like West Virginia. For decades the ISP has provided slow and expensive service, routinely failed to upgrade or repair its network, and generally personified the typical bumbling, apathetic, regional monopoly. And its punishment, year after year, has generally been a parade of regulatory favors, tax breaks, and millions in subsidies. At no point do "telecom policy leaders" or politicians ever try to do much differently.

Case in point: Frontier, fresh off of an ugly bankruptcy, numerous AG and FTC lawsuits over repair delays, and repeated subsidy scandals, is positioning itself to nab yet more subsidies from the state of Wisconsin. Frontier is asking the state of for $35 million in additional grants, despite the fact Wisconsin was just one of several states whose AGs recently sued the company for being generally terrible. Folks familiar with the company argue it shouldn't be seeing a single, additional dime in taxpayer resources given fifteen years of scandal:

"I hope the state will seriously consider the track record of companies to understand which ones have a long record of meeting the needs of residents and businesses,” Christopher Mitchell, director of the Community Broadband Networks Initiative, a Minnesota-based think tank supporting communities’ telecommunications efforts, said in an interview with The Badger Project.

"Frankly, Frontier’s record suggests it should not receive a single additional dollar from any government,” he added. “Local companies, communities, and cooperatives have proven to be much better at turning public subsidies into needed networks."

Keep in mind Frontier has been accused of taking state and federal subsidies on several occasions, misleadingly billing the government extra, then basically just shrugging when asked for the money back. To date nobody has done much about any of it. Also keep in mind Frontier routinely lobbies for (and often ghost writes) state laws banning towns and cities from building their own broadband networks. They're also directly responsible for the gutting of state and federal regulatory and consumer protection authority. Facing little real competition and feckless oversight in most states, nothing much changes. By design.

Historically, state politicians and regulators ignore these kinds of problems, because, it should be made clear, they're corrupt. Regional monopolies find it immensely easy to throw a few bucks at state leaders in exchange for just mindless rubber stamping of whatever goal they're interested in (merger approvals, new subsidies, the gutting of consumer protections, tax breaks, zero accountability). That this strategy continually results in terrible, substandard, and expensive service never seems to enter into the picture. It's just rinse, wash, repeat in a long line of states.

The Wisconsin State Public Service Commission is expected to grant or deny Frontier's request by the end of the month. The company is also first in line to grab new federal broadband funding from the Biden FCC. It will be curious to see if just a parade of unprecedented scandal reduces Frontier's ability to have millions in additional taxpayer money thrown at it in the slightest. My guess is it doesn't. At all.

There are two, indisputable reasons U.S. broadband generally sucks: regional monopolization and the corruption that protects it. But when you see news articles, regulators, many think tankers, or politicians talking about broadband, notice how many are capable of even clearly acknowledging that fact, much less genuinely interested in actually doing anything about it.

Filed Under: broadband, competition, dsl, fcc, subsidies, telecom, upgrades, west virginia, wisconsin
Companies: frontier

Court To Sheriff: Sending An Officer To Tell A Teen To Delete Instagram Posts Is So Very Obviously A Rights Violation

from the [tapping-top-of-house-visit]-you-can-fit-so-many-rights-violations-in-here dept

Wisconsin is apparently America's Karen.

Public schools in Wisconsin referred students to police twice as often as schools nationwide in 2017-18 — nine students were referred to police for every 1,000 students enrolled compared to the national rate of 4.5, a Center for Public Integrity analysis of U.S. Department of Education data found.

Bring cops into schools and schools start thinking every disciplinary problem is a criminal problem. Far too many police departments lending officers to schools agree. Things may have improved over the last couple of years, but this is the latest data from Wisconsin's public schools and it's a pretty grim picture of school administrators abdicating their responsibilities and allowing law enforcement to pick up the slack.

Last year, a Wisconsin student sued the local sheriff and one of his officers for turning an Instagram post of hers into a criminal matter. The student, Amyiah Cohoon, had returned from a spring break trip with her school band and been admitted to a hospital with COVID-like symptoms. Her Instagram photos of her in the hospital were accompanied by statements that she had the coronavirus and wouldn't be back to school anytime soon.

It turned out Cohoon did not have COVID. School administrators decided Cohoon was trying to provoke a panic by falsely claiming she did. They sent out a statement basically calling Cohoon a liar. Then they sent the local sheriff's department after her. This is from her lawsuit:

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

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

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

Faced with possibly having her parents arrested, the student deleted her posts. Then she sued. And the court has now told Sheriff Joseph Konrath what he already likely knew: threatening her (and her parents) with arrest over Instagram posts was a clear violation of her First Amendment rights. (h/t Gabriel Malor)

The opening of the ruling [PDF] makes it clear where this is headed:

The SARS-CoV-2 virus and COVID-19 have had a tremendous impact on American society. But, as this case makes clear, that impact has its limits and, more specifically, does not extend to overriding the protections of the First Amendment.

And the Sheriff was limited to making arguments about why this wasn't a rights violations, rather than quibbling about contradictory representations of the incident that forms the basis for this lawsuit. There's no argument to be had here because the whole thing was caught on tape.

The parties agree that the facts are not disputed. Indeed, the entirety of Sergeant Klump’s encounter with Amyiah and her parents is captured in a dash-cam video. That video, along with other record evidence, establishes that Defendants violated Amyiah’s free-speech rights by demanding that she take down her social media posts or face criminal citation or arrest.

Continuing in the spirit of things that cannot be questioned, the court says there's not even the slightest shade of gray in this series of events. This was absolutely a violation of rights.

Even if short and often grammatically scurrilous, social media posts do not fall outside the ambit of the First Amendment. To the contrary, they are exactly what the First Amendment seeks to protect.

The best defense the Sheriff offered was an inadvertent punchline -- one that demonstrates the person raising the argument understands neither the First Amendment nor the precedent they're citing incorrectly.

But Defendants disagree. In their view, Amyiah forfeited her constitutional protection when she published a post that caused concern in the community and led to an influx of phone calls to the Westfield School District and Marquette County Health Department. According to Sheriff Konrath, this was akin to “screaming fire in a crowded movie theater.” Even setting aside that the popular movie theater analogy actually referred to “falsely shouting fire in a theater and causing a panic,” Schenck v. United States, 249 U.S. 47, 52 (1919) (emphasis added), Defendants’ argument still fails.

Even if the government has an interest in protecting the public and heading off potential panics, its interests do not automatically override the rights guaranteed to citizens. The balancing test doesn't even need to be deployed here because the government's actions were so clearly in the wrong.

Labeling censorship societally beneficial does not render it lawful. If it did, nearly all censorship would evade First Amendment scrutiny. [...] Amyiah’s post is not captured by any of the categorical exceptions to the First Amendment, so this Court will not balance the social utility of curtailing it against its government-assigned value.

The correct response in situations like these is more speech. It certainly isn't the dispatching of officers to a teen's house to deliver threats of arrest.

The government here had every opportunity to counter Amyiah’s speech, but it opted instead to engage in the objectionable practice of censorship.

Every argument raised by the government is immediately shut down. Wrong all the way down.

The Marquette County Sheriff had no more ability to silence Amyiah’s posts than it would to silence the many talking heads on cable news, who routinely pronounce one-sided hot takes on the issues of the day, purposefully ignoring any inconvenient facts that might disrupt their preferred narratives. Indeed, even if Amyiah’s posts had been untruthful, no court has ever suggested that noncommercial false speech is exempt from First Amendment scrutiny.

Furthermore, the demand was accompanied by threats to Cohoon and her parents. Even if she wasn't present for the entire conversation, she inferred the intent of the visit correctly. She deleted the posts while the deputy was still speaking to her father and she later deleted another post discussing her hospital stay, fearing officers would return again if that one wasn't removed. And yet the Sheriff claimed this was all voluntary because no officer ever ordered her to remove the posts. Wrong, oh so very wrong again, says the court:

Defendants ask the Court to lump Sergeant Klump’s efforts into the “attempts to convince” basket. Amyiah agreed to delete her Instagram post prior to learning of Sergeant Klump’s threats. How then, Defendants ask, can she possibly claim coercion? This argument ignores the inherently chilling and coercive nature of a uniformed police officer showing up at a teenager’s home and demanding that she cease otherwise protected speech.

Sergeant Klump’s dash-cam footage shows that it was not his persuasive rhetoric that led Amyiah to delete her social media post, but rather his demand made under the auspices of the Sheriff’s Department: “[W]e need to get it taken down.” That was coercion by any metric. The state cannot dispatch a law enforcement officer to the home of a teenager to demand that she remove an Instagram post that government officials disagree with and then claim the officials were only engaging in the Socratic method. It is possible that a Westfield administrator or Marquette County Health Department employee could have engaged in a mutually-respectful discussion with Amyiah to try to convince her to retract her post voluntarily, but that is not the method they chose. They elected, instead, to rely on the coercive power of the Sheriff’s Department, and any attempt to obfuscate that fact by casting Sergeant Klump as an earnest public relations expert must fail.

Imagine your tax dollars being spent to pay the government and its lawyers to argue this badly against your own interests. This is money being burnt by people too obtuse and too shortsighted to notice they've set something on fire. Every defensive effort in this suit is a last-gasp effort.

Here's the court dismantling the defense that the Sheriff's office truly believed a law was being broken, thus excusing every subsequent rights violation.

Defendants’ probable-cause argument dramatically understates the probable-cause analysis for disorderly conduct. If accepted, Defendants’ position would largely gut the First Amendment’s protection for free speech, allowing police officers a free hand to wrongfully arrest anyone engaging in protected speech so long as the offending officer could point to a possible disturbance or perceived anxiety among those who opposed the speech. Accordingly, the Wisconsin Supreme Court has held that speech that “falls within the protection of the First Amendment . . . may not be punished as disorderly conduct.” In re Douglas D., 2001 WI 47, ¶47, 243 Wis. 2d 204, 239-40, 626 N.W.2d 725, 743. Defendants offer no answer to this precedent, which removes any basis for probable cause.

The government loses. It was a loss its representatives -- both from the school and from the Sheriff's office -- should have seen coming. None of this needed to happen. But no one with any power had the self-awareness to be the adult in the room nor the overall awareness that sending law enforcement out with demands to remove social media posts was exactly the sort of thing the First Amendment was erected to guard against.

Filed Under: amyiah cohoon, cameron klump, covid, free speech, marquette county sheriff, police, wisconsin
Companies: instagram

Reverse Warrants Show Feds Sought Data On Thousands Of Police Brutality Protesters In Kenosha, Wisconsin

from the it's-ok!-the-NSA-said-this-was-cool-and-legal! dept

Is there anything law enforcement won't use geofence warrants for? The answer appears to be "no."

A recent Google transparency report shows exponential growth in the geofence (a.k.a. "reverse") warrant market, one that Google has inadvertently cornered by collecting more GPS info than any of its competitors. These aren't traditional warrants. Traditional warrants use probable cause to justify searches of places, people, and objects (like vehicles).

"Reverse" warrants are just that: a dragnet cast by cops to find a suspect in a pool of possibilities, most of whom are not criminals. Working backwards from a long list of GPS data points and cellphone information, investigators try to find the most likely suspect and then move forward again, this time using some actual probable cause. They're not always correct. And they seem largely unconcerned that demanding location data on hundreds, if not thousands, of innocent people perverts the process.

A recent report by Russell Brandom for The Verge shows the trend towards bulk collection continues. And, as reported previously, it involves federal agents who want to convert state charges to federal charges (using imaginative readings of the phrase "interstate commerce" to do so) to generate as much pain as possible for people who participated in protests against police violence, whether lawfully or not.

Protests in Kenosha, Wisconsin following the shooting of a black man by police quickly turned violent. Not only were businesses burned and destroyed, a 17-year-old interloper named Kyle Rittenhouse convinced his mom to drive him to Kenosha from his home in Antioch, Illinois. Once there, the armed Rittenhouse engaged in his vigilante fantasies, shooting three protesters, killing two of them.

The ATF was more interested in the arson, though. And it thought the best way to generate investigative leads was to gather information on thousands of protesters, almost every one of which did not start any fires.

A series of six newly unsealed warrants (1 2 3 4 5 6), some previously reported by Forbes, show a persistent effort to use Google’s location services to identify Android users in the vicinity of arson incidents.

Issued in quick succession on September 3rd, the warrants came from a team of 50 arson investigators from the bureau of Alcohol, Tobacco and Firearms, deployed to Kenosha to prosecute property damage cases connected to the protests. Using the warrants, The agents targeted seven different geographical zones, asking to identify anyone located within that area during a span that could stretch as long as two hours. The result was a kind of location dragnet, spread over some of the busiest times and locations in the first days of the protest.

The government wants haystacks. It firmly believes it can find needles. And it thinks it can do that often enough and with enough certainty no innocent hay will be treated like a criminal needle. That's insanely arrogant. The more data points you have, the more chances you have of picking the wrong one.

But maybe it really doesn't matter in these cases. After all, the DOJ and its components have proven more than happy to inflict collateral damage on protesters unhappy with the current state of law enforcement. If this ends in a few bogus arrests, does it really matter?

It might matter to the courts. A few judges have blocked these warrants, calling them vague and unconstitutional. And courts might be receptive to the arguments of those wrongfully arrested as a result of the use of these "reverse" warrants. The only probable cause the government has when it issues a geofence warrant is that it's likely Google houses the information it wants to collect. But it needs more than that. If all the government needed was the solid assumption a non-party/non-suspect possessed information it wanted, warrants could be completely unmoored from criminal investigations and used to grab any information the government has an interest in.

Those are legitimate concerns. Unfortunately, law enforcement doesn't share these concerns.

[One] warrant looks at a suspected arson of the Kenosha Public Library, based on lighter fluid and rags that were discovered in a northeast window well alongside minimal fire damage. Without direct witnesses to the fire, police set a two-hour window and a geofence covering the middle third of the downtown’s largest public park space. It was a significant span of time on the busiest night of the protest in an area that provided a natural meeting place for anyone who had taken to the streets that night.

I guess the ATF sees no harm in potentially rounding up several innocent protesters and subjecting them to facetime with federal agents -- federal agents who, by the way, can ring people up on charges simply for lying to them. The only thing standing between these warrants and some pretty ugly -- but inevitable -- outcomes is the courts. Google can anonymize information as much as possible, but follow-up demands are predicated solely on investigators' beliefs that they've found criminal suspects. How accurate those hunches are won't be discovered until they're in possession of identifying info -- info that can be traced back to the original dragnet supported by nothing more than the assumption grabbing all this data will allow investigators to continue their investigations.

Filed Under: 1st amendment, 4th amendment, atf, geofence warrants, kenosha, police, protests, reverse warrants, surveillance, wisconsin

Wisconsin Senator's Social Media Bill Aims To Save The First Amendment By Violating The First Amendment

from the [headed-to-the-ER-to-get-my-third-degree-stupid-burns-treated] dept

Grandstands and bandwagons: that's what's headed to Social Media Town. Professional victims -- far too many of them earning public money -- have produced a steady stream of stupid legislation targeting social media platforms for supposedly "censoring" the kind of the content they really like: "conservative views." Convinced by failed-businessman-turned-failed-president Donald Trump (and his herd of Capitol Hill toadies) that social media has it in for anyone but the leftiest leftists, a bunch of legislators have hacked up "anti-censorship" bills that aim to protect free speech by trampling on free speech.

The latest (but surely not the last) legislator to grab his bandstand and board the bandwagon is Wisconsin state Senator Julian Bradley. Bradley seems convinced his low Twitter polling must be due to social media companies keeping him down.

“Big tech is silencing the things I say,” Bradley explained Monday morning. “They are silencing and shadow banning, they’re blocking any information that I am putting out.”

And he has a message for Big Social Media:

"Free expression is one of the most vital components of our democratic republic. We must ensure our citizens can engage in political speech unfiltered and uncensored by Big Tech. It's time for Facebook and Twitter to consistently and fairly enforce their own rules."

How does Bradley hope to protect free speech from the censorship private companies can't actually commit? By violating their free speech rights, of course. From the bill [PDF] Bradley says he's filing but actually has yet to file [as of July 14th, anyway]:

The bill prohibits a social media platform from using post prioritization (prioritizing certain content ahead of, below, or in a more or less prominent position than others in a newsfeed, feed, view, or search results) on content or material posted by or about a candidate for state or local office or an elected official who holds a state, local, or national office.

The bill also prohibits a social media platform from knowingly censoring, deplatforming (deleting or banning from the social media platform for more than 60 days), or shadow banning (limiting or eliminating the exposure of a user, or content posted by a user, to other users of the social media platform) a candidate for state or local office or an elected official who holds a state, local, or national office.

This compelled speech that favors only certain people is shoved into the bill alongside language that says social media companies must treat everyone equally.

Under the bill, a social media platform must publish the standards it uses for determining how to censor, deplatform, and shadow ban users on the platform. A social media platform must apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.

All social media patrons must be treated equally... except for politicians and would-be politicians, who will be statutorily more equal than others. Failure to carry compelled speech or apply rules "consistently" will potentially cost social media companies hundreds of thousands of dollars (if not millions per claim). And "consistency" will be defined literally on a case-by-case basis since the new law would create a private cause of action against qualifying social media platforms.

Bradley doesn't seem to know or care whether his proposal is constitutional. All he knows is he's pretty sure it's ok for the government to compel speech when courts have ruled government officials can't cut off citizens from interacting with them.

Bradley is quick to point-out that judges have ruled lawmakers and other elected officials cannot block or ban people from commenting on their posts, even if those comments are negative or ugly. The courts have ruled, essentially, that social media is the new public town hall and some online speech is protected.

Bradley is right... at least as far as getting the gist of recent court decisions. But he's wrong when he clarifies his own position:

Bradley said he is using this same logic to say that social media platforms shouldn't be able to ban elected officials, no matter the language they use.

Ah. Well then. Good luck using that "same logic" in court. This isn't junior high debate class, you rube. This is the Constitution. "This same logic" doesn't apply when there are two very clear and very distinct sets of rules that govern private companies and public servants. Public servants can't prevent the public from participating in their own governance. Private companies are free to pick and choose whose content they'll host. And social media services have cut elected officials a lot of slack over the years, keeping accounts alive that would have been shut down much earlier if platforms enforced rules consistently.

Bradley wants to create a carve-out for public officials in both the Constitution and social media platforms' terms of service. That's utter bullshit and shouldn't be tolerated by either his government cohorts or the people he's supposed to be representing.

Filed Under: 1st amendment, content moderation, julian bradley, section 230, social media, wisconsin

The Trump-Hyped Foxconn Wisconsin Deal Finally Falls Completely Apart

from the sucker-born-every-minute dept

You might recall how the Wisconsin GOP, with Donald Trump and Paul Ryan at the head of the parade, struck what they claimed was an incredible deal with Foxconn to bring thousands of high paying jobs to the state. Initially, the state promised Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. The amount of political hype the deal generated was utterly legendary, helping market Trump as a savvy dealmaker who'd be restoring technological greatness to the American Midwest.

Years later, and the deal continues to be exposed as little more than a taxpayer-funded bullshit parade.

After several years of reports making it very clear Foxconn never intended to live up to its promises (and a lot of half-truths and tap dancing by Foxconn), it finally acknowledged this week that the project was being dramatically scaled back:

"Taiwan electronics manufacturer Foxconn is drastically scaling back a planned $10 billion factory in Wisconsin, confirming its retreat from a project that former U.S. President Donald Trump once called “the eighth wonder of the world.” Under a deal with the state of Wisconsin announced on Tuesday, Foxconn will reduce its planned investment to $672 million from $10 billion and cut the number of new jobs to 1,454 from 13,000."

Experts had repeatedly warned that the deal was too good to be true, and likely would never recoup the taxpayer cost as structured. Those warnings were ignored. And unsurprisingly, as the subsidy grew fatter, the promised factory began to shrink further and further, to the point where it's incredibly unlikely much of anything meaningful will be built at all. What does get built will be far, far smaller, and Wisconsin will dole out "just" $80 million in incentives, a thirty-fold decrease from the original subsidy package.

Like most boondoggles, this could have all been avoided with just a modicum of attention and skepticism. Outlets like The Verge had noticed that this deal was going absolutely nowhere as early as 2019, and Foxconn spent several years throwing around completely meaningless jargon to try and obfuscate that fact:

"Throughout its gyrations, Foxconn maintained that it would create 13,000 jobs, though what those 13,000 people would be doing shifted gradually from manufacturing to research into what Foxconn calls its “AI 8K+5G ecosystem.” Other than buzzwords for high-resolution screens and high-speed cell networks, what this ecosystem is has never been fully explained. In February, a Foxconn executive cheerfully likened the company’s vague, morphing plans to designing and building an airplane midflight."

While Trump called the Foxconn deal "the eighth wonder of the world," it wound up being little more than a pile of taxpayer subsidized bullshit. And while scaled back, that's all cold comfort now to the Wisconsin residents forced to move, or the hosting town forced to pay $160 million to buy properties and relocate families in the constriction zone. Or state leaders forced to pay $200 million on road improvements, tax exemptions and grants to local governments for worker training and employment.

Filed Under: boondoggle, donald trump, factory, jobs, lcd panels, paul ryan, subsidies, wisconsin
Companies: foxconn

Employees Say Foxconn & Donald Trump's Wisconsin Factory Scam Was An Absurdist Hellscape

from the empty-promises dept

You might recall how the Wisconsin GOP, with Donald Trump and Paul Ryan at the head of the parade, struck what they claimed was an incredible deal with Foxconn to bring thousands of high-paying jobs to the state. Initially, the state promised Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. The amount of political hype the deal generated was utterly legendary, helping market Trump as a savvy dealmaker who'd be restoring technological greatness to the American Midwest.

Of course experts repeatedly warned that the deal was too good to be true, and likely would never recoup the taxpayer cost as structured. Those warnings were ignored. And unsurprisingly, as the subsidy grew fatter, the promised factory began to shrink further and further, to the point where it's incredibly unlikely much of anything will be built at all. All now cold comfort to taxpayers who have already doled out a small fortune, or the local residents who had to move thanks to a factory that will likely never exist.

Last week, reports emerged that Wisconsin finally appears to be waking up to the scam, and would finally be blocking any more taxpayer subsidies from lining the company's pockets. This week, The Verge (which has done a phenomenal job tracking this bottomless grift from the get-go) penned a great breakdown of the scam, which Trump initially called "the eighth wonder of the world." Ultimately the project isn't much of a project, much less a wonder of any real note:

"The renovations never arrived. Neither did the factory, the tech campus, nor the thousands of jobs. Interviews with 19 employees and dozens of others involved with the project, as well as thousands of pages of public documents, reveal a project that has defaulted on almost every promise. The building Foxconn calls an LCD factory — about 1/20th the size of the original plan — is little more than an empty shell. In September, Foxconn received a permit to change its intended use from manufacturing to storage."

Great, cool. Of course doling out billions in taxpayer subsidies to giant corporations in exchange for fluff and nonsense (then pretending to be really concerned about balancing the budget) is kind of an American tradition. Just ask the telecom sector, which routinely gets a massive fortune in tax breaks and subsidies in exchange for jobs and broadband investment that repeatedly, almost-comically, never actually arrives. Promising the Earth, sea and sky in exchange for bupkis is kind of a national pastime at this point. That's certainly the case in Wisconsin, where any meaningful employment was largely theatrical in nature:

"Even the handful of jobs the company claims to have created are less than real: many of them held by people with nothing to do, hired so the company could reach the number required for it to get tax subsidy payments from Wisconsin. Foxconn failed at that objective, too: last week, Wisconsin rejected the company’s subsidy application and found it had employed only 281 people eligible under the contract at the end of 2019. Many have since been laid off."

Effectively, the company hired just enough people to pretend to be hitting benchmarks. But with the whole thing effectively being a head fake, the few folks who were hired got to experience something that feels more at home in a Kafka-esque satirical comedy than actual reality:

"Soon, the office began to fill with people who had nothing to do. Many just sat in their cubicles watching Netflix and playing games on their phones. The reality of their situation became impossible to ignore. Multiple employees recall seeing people cry in the office. “The best is when you’re in the elevator with somebody and then they just scream out of nowhere,” said an employee who experienced this several times. “They’ve had enough, because things don’t make sense here."

The whole thing is really worth reading, processing, and truly understanding on the off chance we might learn something. A year or so ago, the company routinely became indignant at the mere hint by The Verge that the deal was a farcical dud. Now the company won't even offer a comment to the website's inquiries. Meanwhile, taxpayers have doled out $400 million on land, equipment, and infrastructure that will never actually be needed. Numerous Wisconsinites were forced from their homes using eminent domain, and watched as their homes were subsequently bulldozed as part of a con they had to pay for.

You know, just another day in America.

Filed Under: boondoggle, donald trump, paul ryan, scott walker, wisconsin
Companies: foxconn

Wisconsin Gets Wise To Foxconn's Grift, Blocks New Subsidies

from the took-you-long-enough dept

You might recall how Donald Trump and Paul Ryan's once-heralded Foxconn factory deal in Wisconsin quickly devolved into farce. The state originally promised Taiwan-based Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.

Last October, reports emerged clearly illustrating the ever-shrinking nature of the deal and the way Foxconn was just using nonsense to justify its failure to follow through. While the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Shockingly, that mish-mash of buzz words wound up being effectively meaningless.

Fast forward to late 2020, and Wisconsin finally appears to be getting wise to Foxconn's grift. Attempts to renegotiate the original deal understandably aren't going so well, and the Wisconsin Economic Development Corporation (WEDC) has finally rejected Foxconn’s latest application for tax subsidies, correctly noting Foxconn hasn't come close to fulfilling the promises in the original contract, which included spending $3.3 billion by the end of last year (Foxconn spent $280 million) or hiring 13,000 employees (they only hired 550).

Needless to say, the WEDC isn't particularly thrilled, since Foxconn's original promises died long ago, and the company has been consistently intractable in efforts to renegotiate a new agreement:

"The Recipients are ineligible for tax credits because of their failure to carry out the Project,” WEDC wrote in its letter to Foxconn, quoting the passage defining the project as a Gen 10.5 in the original contract. “The fact that the Recipients have neither built, nor started to build or operate, the required Generation 10.5 TFT-LCD Fabrication Facility (the “10.5 Fab”) is not in dispute. The Recipients have acknowledged that they have no formal or informal business plans to build a 10.5 Fab within the Zone, and WEDC and the State of Wisconsin have corroborated that fact from observation, evaluations, and from industry experts hired to provide consulting services."

For those keeping score at home, that's yet another Donald Trump show pony proposal that wound up being more trouble than it was worth.

Filed Under: boondoggle, donald trump, paul ryan, scott walker, subsidies, wedc, wisconsin
Companies: foxconn

Facebook Sued For Not Preventing A Bunch A White Guys With Guns From Traveling To A Protest To Shoot People

from the idiots-jointly-and-severally-responsible-for-their-idiocy dept

Facebook is being sued again for its involvement in another act of gun violence. [half a h/t to MediaPost, which covered the lawsuit but apparently couldn't bring itself to post the actual filing]

Following the shooting of a black man by Kenosha, Wisconsin police officers, the city erupted in protests and riots. For no apparent reason, a bunch of self-described militias and their members decided they could protect the city from rioters. Organizing on Facebook, the "Kenosha Guard" group members decided they could be a law unto themselves and decided to strap up and show up, informing the local PD they had 3,000 "RSVPs" representing a bunch of willing and possibly able "militia" and/or "boogaloo" boys locked-and-loaded.

Somehow, Antioch, Illinois resident Kyle Rittenhouse was able to talk his mom into driving him and his guns into the heart of the civil unrest. The 17-year-old shot three protesters, killing two of them during an altercation. Rittenhouse then walked past Kenosha cops back to his mom's car and went home. He turned himself in to Illinois law enforcement and is now facing multiple charges, including first-degree intentional homicide.

Facebook's involvement is limited to the pages and groups it hosted. The "Kenosha Guard" page and its call for violence against protesters was reported nearly 400 times. Facebook refused to take it down. At one point, it claimed it had removed it but that statement was later shown to be false. The "call to arms" post had been removed voluntarily by its creator, Kevin Mathewson, shortly after the shooting in Kenosha. (Mathewson and Rittenhouse are also being sued.) Facebook CEO Mark Zuckerberg later called this failure to remove the reported page an "operational mistake."

When tragedies happen, lawsuits follow. But just because obvious and ample damage has been inflicted on the plaintiffs (the lead plaintiff's boyfriend was killed by Kyle Rittenhouse) doesn't mean there's recourse available, unfortunately. Arguing that Facebook is liable for violence perpetrated by so-called "Kenosha Guard" members (and remember, Rittenhouse was not a member of this Facebook group) is a non-starter. Section 230 shields Facebook from being held responsible for third-party content and its failure to remove a page users complained about isn't evidence of negligence. (And the decision to list the "Boogaloo Bois" as a defendant is every bit as ridiculous as one cop's attempt to sue "Black Lives Matter" and a Twitter hashtag.)

But those are the arguments being made in this lawsuit [PDF].

With regard to Defendant Facebook, there were over 400 reports of the violent rhetoric taking place on the Kenosha Guard event page, establishing Facebook had ample knowledge of the conspiracy. Removing this page from its platform would have greatly aided in preventing the organization and popularization of the militias. Perhaps, if Facebook had taken down the page in accordance with its policies, Rittenhouse would never have traveled to Kenosha. Nonetheless, Facebook neglected to prevent the furtherance of the conspiracy, in violation of its duties enumerated in 42 U.S.C. § 1986.

"Perhaps" is not a great legal argument -- not when you're trying to hold a content platform liable for the actions of site users who may or may not have actually been involved with the militia presence in Kenosha. Not only that, there still seems to be no link between Kyle Rittenhouse and the oft-reported "Kenosha Guard" page or its "Call to Arms" event.

This same theory is pursued under state law, where it might be a little more likely to survive a motion to dismiss.

In violation of Wisc. Stat. § 895.045 and the common law standard set forth in Wisconsin case law, Facebook breached its duty to stop the violent and terroristic threats that were made using its tools and platform. A duty consists of “the obligation of due care to refrain from any act which will cause foreseeable harm to others . . . . A defendant’s duty is established when it can be said that it was foreseeable that [the] act or omission to act may cause harm to someone.” Coffey v. Milwaukee, 74 Wis. 2d 526, 536 (1976) (internal citations omitted).

[...]

But for Facebook’s failure to respond to the complaints about the Kenosha Guard’s call to Arms and the co-conspirators’ violent rhetoric, the Kenosha Guard would not have been able to amplify its message and summon armed, untrained militia members to assault and terrorize Plaintiffs. As a result of this inaction, Facebook is liable for the harm its negligence caused.

This still requires the plaintiffs to prove Facebook was at least as negligent as those who actually posted violent rhetoric or engaged in violent acts or intimidation because of what they read on the "Kenosha Guard" page. But even a very charitable reading of the law would place most of the liability on those who engaged in the "call to arms" and those who responded.

Social media services have been sued under a variety of legal theories in hopes of holding them accountable for violent actions taken by their users. In almost every case, the social media services have prevailed. For better or worse, the legal obligations of platforms are minimal. Clearly illegal content must be removed. Everything else is at the platforms' discretion. Good faith moderation and bad faith moderation efforts are the same in the eyes of the law and the law -- primarily Section 230 of the CDA -- says platforms can't be sued because some users asked people to bring guns to a protest. And it can't be sued when one user does what's requested and kills someone.

This isn't to say Facebook should have ignored the posting more than 400 times. It's just saying there's a lot of legal distance to travel between Facebook being terrible at moderation and Facebook being responsible for a bunch of white dudes with guns doing stupid and harmful things.

Filed Under: content moderation, intermediary liability, kenosha, kenosha guard, kyle rittenhouse, police, protests, section 230, wisconsin
Companies: facebook