Senator Klobuchar's Next Unconstitutional Speech Control Bill: The NUDGE Act

from the please-stop dept

Is there a contest in the Senate to see who can propose the highest number of unconstitutional bills? You might think that the leader in any such contest would have to be a crazed populist like a Josh Hawley or a Ted Cruz, but it seems like Senator Amy Klobuchar is giving them a run for the money. Last summer, she released a bill to try to remove Section 230 for "medical misinformation," as declared by the Ministry of Speech Director of Health and Human Services. We already explained the very, very serious constitutional problems with such a bill.

And now she's back with a new bill, the NUDGE Act (Nudging Users to Drive Good Experiences on Social Media) which she announced by claiming it would "hold platforms accountable" for the amplification of "harmful content." You might already sense the 1st Amendment problems with that statement, but the actual text of the bill is worse.

In some ways, it's an improvement on the health misinformation bill, in that she's finally realized that for any bill to pass 1st Amendment scrutiny it needs to be "content neutral." But... it's not. It claims that it's taking a "nudge" approach -- popularized from Cass Sunstein and Richard Thaler's 2008 book of that name. But the whole point of "nudges" in that book is about small tweaks to programs that get people to make better decisions, not threats of government enforcement and regulations (which is what Klobuchar's bill does).

The bill starts out fine... ordering a study on "content-agnostic interventions" to be done by the National Science Foundation (NSF) and the National Academies of Sciences, Engineering, and Medicine (NASEM) to look for such content-agnostic interventions that would "reduce the harms of algorithmic amplification and social media addiction." And, sure, more research from independent and trusted parties sounds good -- and the NSF and NASEM generally are pretty credible and trustworthy. Perhaps they can turn up something useful, though historically, we've seen that academics and government bureaucrats who have no experience with how content moderation actually works, tend to come up with some ridiculously silly ideas for how to "fix" content moderation.

But, unfortunately, the bill goes beyond just the studies. Once the "initial study report" has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they'll work, or whether or not they're realistic. And... that is the unconstitutional part. You can call it "content-agnostic" all you want, but as soon as you're telling companies how they have to handle some aspect of the editorial discretion/content moderation on their sites, that's a 1st Amendment issue. A big one.

The bill requires the Commission it creates to start a rulemaking process which would release regulations for social media websites. The Commission would determine "how covered platforms should be grouped together" (?!?), then "determine which content-agnostic interventions identified in such report shall be applicable to each group of covered platforms..." and then (play the ominous music) "require each covered platform to implement and measure the impact of such content-agnostic interventions..."

And here's where anyone with even a tiny bit of trust and safety/content moderation experiences throws back their heads and laughs a hearty laugh.

Content moderation is an ever-evolving, constantly adapting and changing monster, and no matter what "interventions" you put in place, you know that you're immediately going to run into false positives and false negatives, and more edge cases than you can possibly imagine. You can't ask a bunch of bureaucrats to magically come up with the interventions that work. The people who are working on this stuff all day, every day are already trying out all sorts of ideas to improve their sites, and through constant experimentation, and adaptation, they keep gradually improving -- but it's a never-ending impossible task, and the idea that (1) government bureaucrats will magically get it right where companies have failed, and (2) a single mandate will work is beyond laughable (even excluding the constitutional concerns).

Also, the setup here seems totally disconnected to the realities of running a website. "Covered platforms" will be given 60 days to submit a plan to the Commission as to how they'll implement the mandated interventions, and the Commission will approve or disapprove of the plan. And any changes to the plan need to also be approved by the Commission. Some trust and safety teams make multiple changes to rules all the time. Imagine having to submit every such adjustment to a government Commission? This is the worst of the worst kind of government nonsense.

If companies fail to implement the plans, as the Commission likes, then the bill says the websites will be considered to have committed "unfair or deceptive acts or practices" enabling the FTC to go after them with potential fines.

The bill has other problems, but seems to just be based on a bunch of tropes and myths. It would only apply to sites that have 20 million active users (why that many? who the hell knows?), despite the fact that over and over again we've seen that laws that target companies by size create very weird and problematic side effects. The bill is nonsense, written by people who don't seem to understand how social media, content moderation, or the 1st Amendment work.

And, bizarrely, the bill might actually have some support because (astoundingly?!?) it has bipartisan backing. While it's a Klobuchar bill, it was introduced with Senator Cynthia Lummis from across the aisle. Lummis has, in the past, whined about social media companies "censoring" content she wanted to see (about Bitcoin?!?), but also was a co-sponsor of a bill that would require social media companies to disclose when the government pressures them to remove content, which is kinda funny because that's what this bill she's sponsoring would do.

I'm all for doing more credible research, so that's great. But the rest of this bill is just unconstitutional, unrealistic nonsense. Do better, Senator.

Filed Under: 1st amendment, amplification, amy klobuchar, content moderation, cynthia lummis, harmful content, interventions, mandates, nudge act, social media, studies

EARN ITs Big Knowledge 1st Amendment Problem

from the why-doesn't-anyone-understand-this dept

We've talked about so many problems with the EARN IT Act, but there are more! I touched on this a bit in my post about how EARN IT is worse than FOSTA, but it came up a bit in the markup last week, and it showed that the Senators pushing for this do not understand the issues around the knowledge standard required here, and how various state laws complicate things. Is it somewhat pathetic that the very senators pushing for a law that would make major changes impacting a wide variety of things don't seem to understand the underlying mechanisms at play? Sure is! But rest assured that you can be smarter than a senator.

First, let's start here: the senators supporting EARN IT seem to think that if you remove Section 230 for a type of law-violating content (in this case, child sexual abuse material, or CSAM), that magically means that website will be liable for that content -- and because of that they'll magically make it disappear. The problem is that this is not how any of this actually works. Section 230 expert and law professor Jeff Kosseff broke the details down in a great thread, but I want to make it even more clear.

As a reminder, Section 230 has never been a "get out of jail free" card, as some of its critics suggest. It's a procedural benefit that gets cases that would otherwise lose on 1st Amendment grounds tossed out at an earlier stage (when it's much less costly, and thus, much less likely to destroy a smaller company).

So, here, the senators supporting EARN IT seem to think, falsely, that if they remove Section 230 for CSAM that (1) it will make websites automatically liable for CSAM, and (2) that will somehow spur them into action to take down all CSAM because of the legal risk and that this will somehow make CSAM go away. Both of these assumptions are wrong, and wrong in such stupid ways that, again, EARN IT would likely make problems worse, not better. The real problem underlying both of these is the question of "knowledge." The legal folks like Jeff Kosseff dress this up as "mens rea" but the key thing is about whether or not a website knows about the illegal content.

This impacts everything in multiple ways. As Kosseff points out in his thread, Supreme Court precedent (which you would know if you read just the first chapter of his Section 230 book) says that for a distributor to be held liable for content that is not protected by the 1st Amendment, it needs to have knowledge of the illegal content. Supporters of EARN IT counteract with the correct, but meaningless, line that "CSAM is not protected by the 1st Amendment." And, it's not. But that's not the question when it comes to distributor liability. In Smith v. California, the Supreme Court overturned a conviction of Eleazar Smith (his bookstore sold a book the police believed was obscene), noting that even if the book's content was not protected by the 1st Amendment, the 1st Amendment cannot impose liability on a distributor, if that distributor does not have knowledge of the unprotected nature of the content. Any other result, Justice Brennan correctly noted, would lead distributors to be much more censorial, including of protected speech:

There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.' The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

While there are some other cases, this remains precedent and it's difficult to see how the courts would (or could) say that a website is strictly liable for content that it does not know about.

This creates a bunch of problems. First and foremost, removing 230 in this context then gives websites not an incentive to do more to find CSAM, but actually to do less to find CSAM, because the lack of knowledge would most likely protect them from liability. That is the opposite of what everyone should want.

Second, it creates various problems in how EARN IT interacts with various state laws. As we've pointed out in the past, EARN IT isn't just about the federal standards for CSAM, but it opens up websites to legal claims regarding state laws as well. And the knowledge standards regarding CSAM in state laws is, literally, all over the map. Many do require actual knowledge (which again, reverses the incentives here). Others, however, have much more troubling standards around "should have known" or "good reason to know" or in some cases, they set a standard of "recklessness" for not knowing.

Some of those, if challenged, might not stand up to 1st Amendment scrutiny, such as what's found in Smith v. California, which should require actual knowledge, but either way the law would create a huge mess -- with it mostly incentivizing companies not to look for this. And considering that the sponsors of the bill keep saying that the whole reason of the bill is to get companies to do more looking for CSAM, they've literally got the entire law backwards.

What's most troubling, is that when Senator Blumenthal was pushed on this point during the markup, and it was mentioned that different states have different standards, rather than realizing one of the many (many) problems with the bill, he literally suggested that he hoped more states would change their standards to a potentially unconstitutional level, in which actual knowledge is not required for liability. And that's just setting up a really dangerous confrontation with the 1st Amendment.

If Senator Blumenthal and his legislative staffers actually cared about stopping CSAM, they would be willing to engage and talk about this. Instead, they refuse to engage, and mock anyone who brings up these points. Perhaps it's fun for them to generate false headlines while fundamentally causing massive problems for the internet and speech and making the CSAM problem worse while pretending the reverse is happening. But some of us find it immensely problematic.

Filed Under: 1st amendment, csam, distributor liability, earn it, knowledge, mens rea, monitoring, richard blumenthal, section 230, speech, state laws

Court (For Now) Says NY Times Can Publish Project Veritas Documents

from the prior-restraint? dept

We've talked about the hypocrite grifters who run Project Veritas, who, even when they have legitimate concerns about attacks on their own free speech, ran to court to try to silence the NY Times. Bizarrely, a NY judge granted Project Veritas' demand for prior restraint against the NY Times falsely claiming that attorney-client material could not be published.

The NY Times appealed that ruling and now a court has... not overturned the original ruling, but for now said that the NY Times can publish the documents, saying that it will not enforce the original ruling until an appeal can be heard. This is... better than nothing, but fully overturning the original ridiculous ruling would have been much better. Because it was clearly prior restraint. But, at least for now, the prior restraint will not be enforced.

Still, the response from Project Veritas deserves separate comment, because it's just naively stupid:

In a phone interview on Thursday, Mr. O’Keefe said: “Defamation is not a First Amendment-protected right; publishing the other litigants’ attorney-client privileged documents is not a protected First Amendment right.”

While it's accurate that defamation is not protected by the 1st Amendment, he's wrong that publishing attorney-client communications is -- in most cases -- very much protected. He's fuzzing the lines here, by basically arguing that because Project Veritas is, separately, suing the NY Times, that bans the NY Times from publishing any attorney-client privileged material it obtains via standard reporting tactics.

But that fuzzing suggests something that just isn't true: that there's some exception to the 1st Amendment from publishing attorney-client materials. That's wrong. The attorney-client privilege is with respect to having to disclose certain documents to another party in litigation. If you can successfully show that the documents are privileged, they don't need to be disclosed to the other party. That's the extent of the privilege. It has no bearing whatsoever on whether or not someone else obtaining those materials through other means has a right to publish them. Of course they do and the 1st Amendment protects that.

And, I should just note, that considering Project Veritas' main method of operating is trying to obtain private documents, or record secret conversations, it is bizarre beyond belief that Project Veritas is literally claiming that private material has some sort of 1st Amendment protection. Because that seems incredibly likely to come back and bite Project Veritas at a later time. Of course, considering they're hypocritical grifters with no fundamental principles beyond "attack people with views we don't like," I guess it's not surprising that their viewpoint on free speech and the 1st Amendment shifts depending on who it's protecting.

Filed Under: 1st amendment, attorney-client privilege, james o'keefe, new york, prior restraint
Companies: ny times, project veritas

Terrible Vermont Harassment Law Being Challenged After Cops Use It To Punish A Black Lives Matter Supporter Over Her Facebook Posts

from the we-need-better-laws-because-we-can't-count-on-justified-applications dept

In June 2020, in Brattleboro, Vermont, something extremely ordinary happened. Two residents of the community interacted on Facebook. It was not a friendly interaction, which made it perhaps even more ordinary.

Here's the ordinariness in all of its mundane detail, as recounted in Brattleboro resident Isabel Vinson's lawsuit [PDF] seeking to have one of the state's laws found unconstitutional.

In June 2020, Christian Antoniello, a Brattleboro resident and the owner of a local business called the Harmony Underground, criticized the Black Lives Matter movement on his personal Facebook page, stating, “How about all lives matter. Not black lives, not white lives. Get over yourself no one’s life is more important than the next. Put your race card away and grow up.”

On June 6, Ms. Vinson posted on her own Facebook page and tagged the Harmony Underground’s business page. Ms. Vinson’s post stated: “Disgusting. The owner of the Harmony Underground here in Brattleboro thinks this is okay and no matter how many people try and tell him it’s wrong he doesn’t seem to care.” In the comments on her post, Ms. Vinson recommended that everyone “leave a review on his page so [Antoniello] can never forget to be honest,” and also tagged a Facebook group called “Exposing Every Racist.”

In response to Ms. Vinson’s Facebook post, a conversation thread ensued among several people, including Ms. Vinson, about her post, Mr. Antoniello, and other complaints about the business.

That's when things stopped being normal, and started becoming increasingly more bizarre.

Several weeks later, Antoniello and his wife reported to the Brattleboro Police Department that they were being harassed on Facebook and that Ms. Vinson’s Facebook activity caused them to fear for their safety.

This is kind of a normal reaction. Kind of. Not everyone subjected to online pitchforks will choose to make it a police matter, but this couple did.

If you're wondering where the criminal activity is, the Brattleboro police department has an answer for you.

On July 7, the Brattleboro Police Department cited Ms. Vinson under § 1027 based on her Facebook activity.

Here's what the state law (Section 1027) says:

A person who, with intent to terrify, intimidate, threaten, harass, or annoy makes contact by means of a telephonic or other electronic communication with another and makes any request, suggestion, or proposal that is obscene, lewd, lascivious, or indecent; threatens to inflict injury or physical harm to the person or property of any person; or disturbs, or attempts to disturb, by repeated telephone calls or other electronic communications, whether or not conversation ensues, the peace, quiet, or right of privacy of any person at the place where the communication or communications are received shall be fined not more than $250.00 or be imprisoned not more than three months, or both.

It's an amazingly broad law that criminalizes all sorts of speech since it can be stretched to fit nearly any speech a complainant doesn't care for. "Harass" is a pretty non-specific term. "Annoy" is even more vague.

That's the law being challenged by Vinson and the ACLU. It's a vague, unconstitutional law. And it's a law the PD obviously didn't sincerely believe applied to Vinson's Facebook post because it ditched everything about this highly questionable case the moment questions started being asked.

Two weeks later -- following an ACLU public records request for all documents related to Vinson's charge and prosecution -- the Brattleboro PD approached Vinson and offered to drop the charges in exchange for her entering a diversion program that could be completed in lieu of criminal charges. Vinson refused to enter the diversion program and said she was seeking legal representation. Here's what happened next:

Two days later, the Brattleboro police informed Ms. Vinson that she would not be charged.

All's well that ends abruptly in the face of the slightest resistance. But the law is still on the books. If the Brattleboro cops may decide not to take a second swing at Isabel Vinson with this law, law enforcement officers in the state are still free to misuse the law to punish people for saying things other people didn't like. And, needless to say, the vague law presents a perfect crime of opportunity for cops if a state resident says something cops don't like. That's why the state is being sued and the Vermont federal court being asked to declare the law unconstitutional. As it stands, the law presents an existential threat to free speech in the state. And Isabel Vinson's experience in Brattleboro shows what can happen when the threat goes from theoretical to fully-realized.

Filed Under: 1st amendment, black lives matter, brattleboro, christian antoniello, debate, free speech, harassment, isabel vinson, social media, vermont
Companies: aclu, harmony underground

UK Government Refreshes Its Terrible 'Online Safety Bill,' Adds Even More Content For Platforms To Police

from the maybe-the-gov't-could-just-print-out-a-shorter-list-of-speech-it-likes dept

The UK's internet censorship bill rebranded from "Online Harms" to "Online Safety" last spring. The name change did nothing to limit the breadth of the bill, despite supposedly shifting the focus from "harm" to "safety." Whatever the name, it's still being touted by supporters as a fix for anything anyone doesn't like about the internet.

Speech will be policed. Lots of it. Everyone from megalithic Meta to the person running a niche message board will be subject to the new rules, which shifts liability from the posters of unwanted or illegal content to the third parties hosting it.

In order to find and remove content found on the ever-lengthening list of "bad" content (which, let's highlight again, includes legal content), platforms and services will have to perform more internal policing of content. This means that, in many cases, encryption for content and communications will no longer be a viable option. To comply with the law -- one that carries potential fines of up to 10% of a company's global revenues -- providers will have to remove end-to-end encryption so they can monitor communications between users.

The UK government isn't honest enough to call for the end of encryption. But it's willing to let attrition do its dirty work for it. The anti-encryption agitating continues, despite the UK government's Information Commissioner's Office telling the rest of the government that weakening or eliminating encryption will harm more children than it saves.

The bill marches forward, gathering even more speech-harming detritus. As CNBC reports, another round of UK government inquiries has resulted in the proposed law being made even worse.

The government said Friday that the bill will now include extra-priority provisions outlawing content that features revenge porn, drug and weapons dealing, suicide promotion and people smuggling, among other offences.

It will also target individuals who send online abuse and threats, with criminal sentences ranging up to five years.

Stuff that was already on the ban list has been given greater priority, aligning self-harm and drug dealing with the big baddies of "terroristic content" and child sexual abuse material. Online threats and "abuse" will get stiffer legal penalties.

But that's not all: there's more to add to the UK government's list of content it would like to treat as criminal acts.

The government said it is considering further recommendations, including specific offences such as sending unsolicited sexual images and trolling epilepsy sufferers, tackling paid-for scam advertising, and bringing forward criminal liability for senior company executives at the tech firms.

Every addition adds to the list of content that platforms and services must proactively monitor and remove. The addition of criminal liability for tech execs may seem like a crowd pleasing Guillotine 2.0, but in reality, it just means jailing people because their companies failed to achieve the impossible tasks the UK government has asked of them.

A lot of what's being added won't be easily detected by AI or human moderators -- certainly not proactively. Context matters but proactive monitoring means context will be ignored. The difference between revenge porn and regular porn isn't immediately and obviously clear. Pictures of guns or drugs are not necessarily promotional. And there are going to be some people in desperate need of help getting caught in the friction between talking about suicide and "suicide promotion."

It all sounds good when it's still on paper and reads like a blueprint for a trouble-free online existence. But it falls apart the moment you start asking questions about how this can be implemented without massively altering the contours of free speech in the UK and generating an incredible amount of collateral damage that may, in many cases, negatively affect the same vulnerable people the government believes this bill will protect.

Filed Under: censorship, encryption, free speech, liability, online safety bill, takedowns, uk

Court Grants Qualified Immunity To Officer Who Told Couple To Take Down Facebook Post About Off-Duty Cop Who Shot Their Dog

from the unfortunate,-but-probably-correct dept

This case -- sent to us by Eric Goldman -- touches on a lot of subject matter covered frequently at Techdirt: dead dogs, police officers, the First Amendment, and qualified immunity. Yet the narrative isn't quite what's expected given the elements. And the court's conclusions, while disappointing, are likely the correct application of the law.

Here's the background to the case, as recounted in the federal court decision [PDF]:

Plaintiffs John and Brittany Knudsen, a married couple, reside in Spring Hill, Kansas. Plaintiffs owned a Great Dane dog named Nala. On March 29, 2020, Nala got out of plaintiffs’ house. Defendant Mark Cantrell and his wife, Jessica, were walking their dogs near plaintiffs’ house and Nala approached them. Defendant Cantrell shot Nala with a firearm. Nala loped, grievously wounded, toward plaintiffs’ property, and John Knudsen saw that Nala had sustained a gunshot wound. John Knudsen took Nala to the emergency veterinarian, where plaintiffs chose to have Nala humanely euthanized.

Not everyone walking their dog would carry a gun and/or be willing to shoot another dog just because the dog approached them. There's a reason Mark Cantrell might have deployed "shoot first" tactics: he was an Olathe, Kansas police officer.

The shooting was reported to the Spring Hill Police Department by the Knudsens. Officer Shaun Whitesell handled the call and took the Knudsens' statements. The original report listed the Knudsens as the victim of a potential crime (the shooting of their dog) and Officer Cantrell (who was off-duty at the time) as the suspect. Later, Officer Whitesell "changed the report to reflect that Cantrell was the victim."

Over the next couple of weeks, the Knudsens tried to obtain copies of the reports and witness statements. The Spring Hill PD refused to hand them over. Officer Whitesell informed the couple that "Cantrell would likely not be charged."

The Knudsens took their complaints to social media.

Plaintiffs posted information about the incident publicly on Facebook on April 15, 2020. “The Facebook post described the events[,] . . . identified Cantrell as the shooter, and identified that he was a police officer for the Olathe, Kansas Police Department[.]” The Facebook post went viral.

Soon after this, Cantrell called the Spring Hill PD to complain about the post, stating that he had received a "threat from a person unrelated to the Plaintiffs." This led to another set of unfortunate statements and events.

Defendant Whitesell responded to defendant Cantrell’s call and met with defendant Cantrell and his wife. The Cantrells wanted plaintiffs charged. Whitesell told the Cantrells that plaintiffs “would be ticketed for harassment and/or witness intimidation.” Later, Whitesell visited plaintiffs’ home and discussed the Facebook post with plaintiff Brittany Knudsen. Whitesell told Brittany Knudsen the post was “causing problems, and told her it should be taken down.”

Every action here was wrong. If threats had been made against Cantrell, the only criminal suspect would be the person making the threats. Officer Whitesell could have simply informed the Knudsens that their post had resulted in threats being made against Cantrell and allowed them to make a decision about taking the post down. What he shouldn't have done is tell another officer he would attempt to issue a criminal citation and definitely should not have instructed the couple to take the post down.

That led to this lawsuit, which alleges First Amendment violations by Officer Whitesell and brings some state law claims (conversion, assault) against the off-duty officer who shot the couple's dog. The court says it only has jurisdiction over the First Amendment allegations against Officer Whitesell.

Whitesell argued he should be awarded qualified immunity because it was not clearly established that demanding someone take down a social media post violated rights. The court, after much discussion, agrees with Officer Whitesell.

While it should be fairly obvious police interactions over social media posts contain a multitude of First Amendment implications, the speech targeted by Officer Whitesell's actions did not actually target him. It discussed the actions of another police officer, one who was off-duty at the time he shot the Knudsens' dog.

[P]laintiffs try to characterize their speech as criticism “of both the City of Spring Hill as well as Defendant Cantrell, an officer for the Olathe, Kansas police department.” Plaintiffs assert that “[s]peech, challenge, and criticism directed at police is . . . [a] clearly established” right. (citing Hill, 482 U.S. at 461). But this characterization doesn’t match the circumstances of this case. Plaintiffs don’t allege that they criticized the police in their Facebook post. Instead, plaintiffs’ post criticized defendant Cantrell for off-duty actions unrelated to his employment with the Olathe Police Department. Critically, the post doesn’t criticize the alleged retaliator: defendant Whitesell. [...] Even if one construes plaintiffs’ post as criticism of defendant Cantrell’s actions as a police officer, the alleged retaliation is several degrees removed from that criticism.

The court also notes that the Knudsens seemingly had no complaint about Officer Whitesell or the Spring Hill Police Department, directly quoting a statement made by the couple about their local PD:

“Responding Spring Hill Officers and the entire Spring Hill PD have been nothing but amazing during this whole situation. They have been sympathetic to our loss, and have continually checked in on us to be sure we are holding up. This is how a police department should be, and I am proud to have these officers protecting our community. But unfortunately their hands are tied[.]”

That mismatch between public and private action means Officer Whitesell can't be sued for handling this poorly.

Here, plaintiffs spoke about Cantrell in his capacity as a private citizen, then that speech resulted in a complaint by Cantrell, and then the Spring Hill police department dispatched defendant Whitesell to plaintiffs’ home, where the alleged retaliation took place. Yet, plaintiffs rely on cases where the police retaliated against plaintiffs for speech directed at police officers. [...] These cases don’t match plaintiffs’ allegations. Plaintiffs allege that their speech was directed at another police officer and defendant Whitesell responded to a complaint from that police officer, not the speech itself.

That's the correct call in this case. Officer Whitesell probably shouldn't have told the couple to take down the post, but he was responding to a reported threat allegedly related to the post, rather than discussing the contents of the post itself. Whether Officer Whitesell would have performed these actions in response to a reported threat from a regular resident (rather than another police officer) can be debated, but it likely can't be proven one way or the other. And, in either case, it wouldn't change the outcome of this case.

That just leaves the state law claims against the off-duty officer and I would imagine those are just as unlikely to succeed. It's one thing when someone enters another person's property and assaults their pet. It's quite another when the pet is loose and is approaching someone in a public area like a sidewalk. Chances are, the state court will find no violation of law in Cantrell's actions, even if they appear to be an overreaction to the perceived threat -- which at this time was nothing more than an unchained dog (albeit a large one).

This sucks for the Knudsens but sometimes bad things happen and there's no one that can be held legally responsible for an unfortunate series of events.

Filed Under: 1st amendment, brittany knudsen, dogs, john knudsen, mark cantrell, police, qualified immunity

Tenth Circuit Tells College Administrator That Ordering A Student To Stop Talking About An Instructor Clearly Violates The First Amendment

from the how-could-you-seriously-think-otherwise? dept

The First Amendment applies to school students. This is something courts seem to have particular difficulty drilling into the heads of school officials and administrators. Yes, their rights are somewhat limited due to their age and/or time and place restrictions, but they are closer to "fully respected" than "nonexistent" -- the latter of which appears to be the default assumption for far too many educational entities.

Schools hope allegations of "disruption" will salvage their rights violations. But in far too many cases, the asserted disruption was localized solely in the minds of the rights violators, resulting in them having to continue facing lawsuits over their actions, rather than having complaints against them judiciously wished away into the qualified immunity cornfield.

Such is the case here in legal action involving a college and its violation of a student's rights. (via Volokh Conspiracy) In this case, a student, who dropped a class because she was unhappy with her instructor, was subjected to discipline solely because she (very quietly) made her unhappiness with this professor known.

The plaintiff, Rowan Thompson, has an eye condition that makes her sensitive to light. In one class, taught by Dr. Megan Lazorski, avoiding aggravating this condition meant sitting in one of the first three rows. For the most part, Thompson was able to use this option. But in two instances, when she arrived late, seats up front were no longer available. Thompson chose to sit on the floor, which apparently irritated her instructor. In the second instance -- with no other usable seats available -- Dr. Lazorski gave Thompson this option: sit in an available seat or leave the class. Thompson left. Then she dropped the class.

She also sought mediation of her dispute over seating. The mediators asked her to submit a review of Dr. Lazorski, utilizing an online form for evaluations and class ratings. Thompson discovered she could no longer do this through the college website's portal since she was no longer listed as a student of Lazorki's.

Because the only option the mediator provided wasn't available to her, Thompson emailed her fellow students, asking them to submit their own reviews of Lazorski's class. This is taken from the Tenth Circuit Appeals Court decision [PDF]:

Hello everyone, I’m Rowan- some of you may know me as the goth girl who sat on the floor in class. For those who don’t know, I came late to class a couple of times and sat on the floor. It angered the professor enough that I was asked to leave class on the last occasion. A few weeks later, after a mediation attempt between the dean of chemistry and the professor, I had to drop the class to stop further confrontation- over sitting on the floor.

I have heard so many of you say how horrible a time you’re having in this class, that there are some bits that are ridiculous or downright unreasonable. You shouldn’t have to suffer through a class, especially one that is required, and this is not what college is supposed to be like. College is supposed to make us feel excited about our futures and finally learn what we are interested in, not ditch class because we know we won’t learn anything. You don’t need to keep your complaints and troubles private; this is what the evaluations are for. They’re online; the link to fill them out appears when you log into Blackboard, they take only a couple of minutes, are anonymous, and the more detail is said the better. Every issue you’ve had, every complaint? This is when the faculty and university is listening and wants to hear them. Students, including myself, who have dropped the class won’t be able to fill out an evaluation- our voices cannot be heard unless we speak to the deans directly, but I know for a fact that many are afraid to speak face-to-face.

Please, take the few minutes to review this chemistry class and be honest- make the faculty listen to you so that this class can change for the better. If not for yourself, than for those who have had to drop the class, feeling worthless and stupid, or for students who will have to take this class after you. Hang in there- you’re almost done and then you can leave this semester behind you! ? ?

-Rowan

This plea for action on her behalf (and on behalf of other students who may have been treated unfairly or were too intimidated to bring their complaints directly to the dean) resulted in this extreme overreaction by the college's administrators:

On April 25, Thompson received a letter from [Associate Director of Student Conduct Thomas] Ragland informing her that “the Dean of Students Office received reports that [Thompson] may have violated provisions of the Student Code of Conduct”; that these reports concerned “the disagreement between [Thompson] and Dr. Lazorski”; that, specifically, Thompson’s email to her former classmates “may have violated the Student Code of Conduct”; that Thompson had to meet with Ragland; and that Thompson was subject to a “No Contact order” restricting her from communicating with Dr. Lazorski. Ragland’s letter specifically cautioned: “Further, due to the persistent communication and disruption your communication is about Dr. Lazorski (sic), you are restricted from discussing Dr. Lazorski with any student in the CHE 1800 course or any of Dr. Lazorski’s classes, as this would be a violation of the this No Contact Directive (sic).”

There's your prior restraint. And there are the baseless accusations about "persistent communication" and "disruption," neither of which the school was able to provide evidence of when defending against this lawsuit. Going back to Tinker (1969) and tracing procedural history forward, the Tenth Circuit says denying qualified immunity is a no-brainer. This right is clearly established.

We think the foregoing precedents clearly establish that Thompson’s complaint adequately states a First Amendment violation. Indeed, this case is, at least at the present stage of the proceedings, an easy one. Thompson’s speech was restricted. And there is no apparent legitimate basis for this restriction.

As for the argument that school "disruption" justified Ragland's prior restraint, the court is having none of it.

He relies in part on the disruption caused to the two classes Thompson attended when she sat on the floor. Those two classes were in early February 2019. Ragland’s letter to Thompson was in late April. In the interim (sometime after the mediation on March 18) Thompson sent her email to fellow students. A reasonable factfinder could readily determine that the discipline was imposed on Thompson because of the email, not just because of the two classroom incidents that caused minimal disruption and had apparently been resolved by Thompson’s dropping the class.

Nor was Thompson's email disruptive.

The other possible cause of disruption was Thompson’s email to fellow students. But there is no evidence of any disruption caused by the email; on the contrary, the complaint alleges that there was no disruption to the work of MSU, and none was mentioned in Ragland’s letter imposing the discipline. Nor could disruption be reasonably anticipated. Thompson merely sent a respectful, noninflammatory email expressing her dissatisfaction with a professor’s performance and encouraging her former classmates to submit “honest” reviews about the class and the professor.

The court's harshest criticism is reserved for that particular argument:

What Ragland argues in his appellate brief is remarkable. He claims that Thompson’s “efforts to encourage other students to give negative evaluations would disrupt Dr. Lazorski’s career and her relationship with her students, as well as [MSU’s] efforts in employing faculty to conduct the class.” [...] If we were to accept that rationale, there would be no First Amendment protection for criticism of government employees.

This reverses the lower court's decision, which inexplicably sided with Ragland and his argument that criticism of government employees isn't protected speech. The administrator loses his qualified immunity and will have to continue defending himself against Thompson's lawsuit. This doesn't mean the addition of more facts to the case might result in a delayed win for Ragland (although, given what's detailed here, I don't see how he possibly walks away from this), but the onus is now on the administrator to defend his apparent rights violation, rather than simply claim he had no idea ordering a student to stop talking about an instructor might violate the student's rights.

Filed Under: 10th circuit, 1st amendment, college, free speech, megan lazorski, prior restraint, reviews, rowan thompson

Small Alabama Town's Overzealous Traffic Cops Also Monitored Internet Traffic To Threaten Critics Of The Corrupt PD

from the shitheel-is-as-shitheel-does dept

Welcome back to Brookside, Alabama, home of the surprisingly expensive traffic ticket. Home to one (1) Dollar General, nine (9) police officers, two (2) drug dogs (one named "K9 Cash" just in case you had any doubts about the PD's intentions), and one (1) Lt. Governor-ordered state audit. Brookside (pop. 1,253) made national headlines for soaking every passing driver officers could find with excessive fines, fees, vehicle seizures, and inconvenient court dates.

AL.com's investigation showed that under Police Chief Mike Jones (who was hired in 2018), the small town has seen an increase in traffic fines, topping $600,000 in 2020. The department's overachievers patrolled over 114,000 miles in a single year and issued more than 3,000 citations to passing drivers. Chief Mike Jones still had room to complain, despite his department's funding escalating from $79,000 to $524,000 since he took office. The $600,000 fine figure may have seemed abhorrent to anyone outside the suddenly flush Brookside, but Chief Jones said there was room to improve.

The new chief's directives had an immediate effect on officers, who took to the (very few) streets in unmarked cars while wearing unmarked uniforms. The resulting influx of traffic citation defendants pulled officers from the remarkably un-dangerous streets of rural Brookside to perform traffic control for the dozens of out-of-towners driving into Brookside to attend once-a-month court sessions.

The officers also decided the gloves were off and treated alleged moving violators accordingly. According to multiple accounts from Brookside victims, cops made up laws, fabricated charges, and used racist language to address drivers.

As a result of this unexpected national coverage of Chief Mike Jones's Boss Hoggish practices and policies, Chief Jones resigned his position, leaving it to the Brookside metroplex to decide what to do with all the extra cops it had decided to employ while Chief Jones was making it profitable to be a government employee.

Former Chief Jones may be able to duck under the national press radar, but local scrutiny continues, thanks to AL.com. The testimonials continue to pour in, showing Jones and his employees did pretty much everything but shoot someone on Fifth Avenue before being forced to act like real police in the face of the criticism of millions.

Drivers who have had the displeasure of interacting with the Brookside PD aren't happy. And their complaints have made their way to social media services. Apparently, a couple hundred feet of interstate traffic isn't the only thing the Brookside PD has been policing. Officers have been monitoring the internet airwaves to silence complaints and ensure the continued flow of excessive fines and fees.

Michelle Jones made an official complaint to the Alabama Attorney’s General’s office three years ago, arguing that Brookside police stopped her out of jurisdiction, issued a bogus citation and threatened her with more charges after she criticized them on Facebook.

[...]

In 2020, she had explained her case this way to the AG’s office: “The person threatened me with an arrest if I did not take down my Facebook pictures and posts of their police officers, stop sending emails to the local politicians, as well as others, and show them (Brookside police) that I understand law enforcement practices.”

Jones is not alone, as AL.com inadvertently rhymes. Others have come forward to complain about Brookside cops issuing less-than-implicit threats about online criticism. Another driver pulled over by a Brookside officer claimed the cop confiscated her phone, "explaining" that the PD often had drivers try to "stop and record us."

Jones' case is, however, one of the most alarming. After posting to Facebook, she was called by someone who only identified him as "Detective Johnson" of the Brookside Police Department. He demanded she come in and talk to officers at the PD. When she refused, things escalated:

“Detective Johnson had called and asked that I come to the Brookside Police Department to talk to them. After I told him that I would not, he reported that they have two warrants for my arrest. He stated that I issued threats, incited a riot, and slandered the Brookside Police Department in my Facebook posts. He reported that his Police Chief was mad.”

Others who have been pulled over by Brookside officers claim they've been pulled over again -- not for alleged moving violations -- but to be told there would be "consequences" if more negative content was posted to social media.

It's not surprising that a law enforcement agency that has largely blown off the Fourth and Fifth Amendments would treat the First Amendment so cavalierly. About the only thing the Brookside PD hasn't done is demand US military members be quartered by drivers cited for (possibly imaginary) traffic violations.

While it's somewhat satisfying to see Chief Jones flee his position of power after being pinpointed as the person responsible for flagrant abuses of power, it would be far more satisfying to see him run out of town by aggrieved Brookside residents. But, for whatever reason, locals and local officials have nearly nothing to say about three years of exponentially escalating roadside extortion that took place under their noses for three years.

And it was under their noses. The town is incredibly small and residents had to know the budget situation had changed drastically once Chief Jones was hired. Everyone here is culpable. But town officials are the most culpable. They had the power to stop this but they chose to profit from it instead. And for that, they should all be as out of a job as Chief Jones is. The real shame is Mike Jones will probably be able to leverage this bullshit "success" into a better paying job somewhere else in the nation since nothing he did has been found to be illegal. That may change in the future as lawsuits against him and his department move forward, but for far too many cash-strapped communities, a roadside bandit like Chief Jones might just be the hero they need… or at least endorse until it becomes politically inconvenient.

Filed Under: 1st amendment, alabama, brookside, free speech, intimidation, social media, threats, traffic stops

Explainer: The Whole Spotify / Joe Rogan Thing Has Absolutely Nothing To Do With Section 230

from the so-just-stop-it dept

I really wasn't going to write anything about the latest Spotify/Joe Rogan/Neil Young thing. We've posted older case studies about content moderation questions regarding Rogan and Spotify and we should have an upcoming guest post exploring one angle of the Rogan/Young debate that is being worked on.

However, because it's now come up a few times, I did want to address one point and do a little explainer post: Spotify's decisions about Rogan (and Young and others) has absolutely nothing to do with Section 230. At all.

Now, we can blame Spotify a bit for people thinking it does, because (for reasons I do not understand, and for which both its lawyers and its PR people should be replaced), Spotify has tried to make this about "content moderation." Hours after Spotify's internal "content policy" leaked, the company put out a blog post officially releasing the policy... that had already leaked.

And, when you're talking about "content policy" it feels like the same old debates we've had about content moderation and trust and safety and "user generated content" websites and whatnot. But the decision to keep Rogan on the platform has nothing, whatsoever, to do with Section 230. The only issue for Section 230 here is if Rogan did something that created an underlying cause of action -- such as defamation -- then, there might be a Section 230 issue if the defamed individual chose to sue Spotify. Spotify could then use Section 230 to get dismissed from the lawsuit, though the plaintiff could still sue Rogan. (If you want an analogous case, years back, AOL was sued over something Matt Drudge wrote -- after AOL had licensed the Drudge Report in order to distribute it to AOL users -- and the court said that Section 230 protected AOL from a lawsuit -- thought not Drudge himself).

The thing is, no one (that I can find at least) is alleging any actual underlying cause of action against Rogan here. They're just arguing that somehow Section 230 is to blame for Spotify's decision to keep Rogan on their platform.

But the question of Spotify's decision to keep Rogan or not has nothing to do with Section 230 at all. Spotify has every right to decide whether or not to keep Rogan in the same manner that a book publisher gets to decide whether or not they'll publish a book by someone. And that right is protected by the 1st Amendment. If someone sued Spotify for "hosting Joe Rogan," Spotify would win easily, not using Section 230, but for failure to state any actual claim, backed up by the 1st Amendment right of Spotify to work with whatever content providers they want (and not work with ones they don't).

Unfortunately, Spotify's founder Daniel Ek made matters even dumber yesterday by pulling out the mythical and entirely non-existent "platform/publisher" divide:

At the employee town hall, both Ek and chief content and advertising business officer Dawn Ostroff “repeatedly used the phrase ‘if we were a publisher,’ very strongly implying we are not a publisher, so we don’t have editorial responsibility” for Rogan’s show, said a second Spotify employee who listened to the remarks — and who, like some Spotify employees listening, found the executives’ position “a dubious assertion at best.”

In a chat linked to the town hall livestream, “A large portion of the angry comments were about how Spotify’s exclusive with Rogan means it’s more than just a regular platform,” said one employee.

That LA Times article, by Matt Pearce and Wendy Lee (who are good reporters and should know better), then confuses things as well, implying that Section 230 depends on whether or not a website acts as a "publisher or a platform." It does not. Section 230 applies equally to all "interactive computer services" with regards to content provided by "another information content provider." There is no distinction between "platform" and "publisher." The only issue is if Spotify helps create the content -- in whole or in part -- and courts have determined that merely paying for it doesn't matter here. It's whether or not the company actively had a role in making the actual content (and, more specifically, in contributing to the law-violating nature of any content). But that's not the case here.

Still, with all this talk of "platforms" and "publishers" and "content policies" and content moderation -- people seem very very quick to want to somehow blame Section 230. Superstar tech reporter Kara Swisher went on Anderson Cooper's CNN show and argued that Spotify doesn't deserve Section 230, which is weird, again, because Section 230 isn't implicated at all by Spotify's decision.

Then, the folks at Sleeping Giants, an activism group that I think does really great work communicating with advertisers about where their ad dollars are going, also tweeted about the LA Times article suggesting that it was another reason why Section 230 was "too broad." After I (and many others) tweeted at them that this wasn't a 230 issue at all, they quickly apologized and removed the tweet:

But since so many smart people are getting this confused, I wanted to try to do my best to make it clear why this is not a 230 issue.

And the simplest way to do so is this: How would this situation play out any differently if Section 230 didn't exist? If it didn't exist then... Spotify still would be making decisions about whether or not to cut a deal with Rogan. Spotify, just like a publishing company, a newspaper, a TV cable news channel, would have a 1st amendment editorial right to determine who to allow on its platform and who not to. 230 doesn't create a right to editorial discretion (both up and down). That already exists thanks to the 1st Amendment.

Indeed, if you're thinking that Spotify might somehow be liable if someone gets hurt because they listened to someone spreading stupid advice on Rogan's podcast, that's not going to fly -- but, again, because of the 1st Amendment, not Section 230. As Section 230/1st Amendment expert Prof. Jeff Kosseff explained in this great thread, book publishers have (multiple times!) been found to be not liable for dangerous information found in the books they publish.

In both of the cases he describes, people were injured, tried to hold the book publisher responsible for telling them to do something dangerous, and the courts said the 1st Amendment doesn't allow that.

So then, the only way 230 comes into play here is in the specific case of if Rogan broke the law with his speech on the podcast (with defamation being the most obvious possibility). As far as I can tell, Rogan has never been sued for defamation (though he has threatened to sue CNN for defamation, but that's another dumb story for another day). So, the risk here seems minimal. Some people have suggested suing for "medical misinformation" but anything Rogan says along those lines is almost certainly protected 1st Amendment speech as well. But, if Rogan somehow said something that opened him up to a civil suit and the plaintiff also sued Spotify... Section 230 would... help Spotify... a tiny bit? It would likely help Spotify get the case tossed out marginally earlier in the process. But even if we had no 230, based on how the law was before Section 230 (and the examples like those shown by Jeff Kosseff), the courts would likely say Spotify could only be liable if it had knowledge of the illegal nature of the content, which Spotify could easily show it did not -- since Rogan produces the show himself without Spotify.

So in the end, 230 provides Spotify a tiny kind of benefit here -- the same it provides to all websites that host 3rd party content. But that benefit has nothing to do with the decision of whether to keep Rogan or not. It would only apply to the mostly unlikely situation of someone suing, and even then the benefit would be something akin to "getting a case dismissed for $50k instead of $100k, because the case would still be dismissed. Just with slightly less lawyer time.

We can have debates about Joe Rogan. We can have debates about Spotify. We can have debates about Section 230. All may be worth discussing. But the argument that Spotify keeping Rogan has anything to do with Section 230... is just wrong. The 1st Amendment lets Spotify host Rogan's podcast, just like it lets any publisher publish someone's book. Taking it away won't change the calculus for Spotify. It won't make Spotify any more likely to remove Rogan.

So, go ahead and have those other debates, but there's no sense in trying to claim it's all one debate.

Filed Under: content moderation, daniel ek, intermediary liability, joe rogan, liability, licensing, podcasts, section 230
Companies: spotify

Governor Inslee Wants To Jail Politicians Who Lie? What Could Possibly Go Wrong?

from the besides-everything dept

I know that people who identify tribally as Democrats or Republicans often like to accuse the other team of being especially censorial, but the unfortunate fact is that elected officials in both parties seem equally interested in using the power of the state to take away 1st Amendment rights. For every misguided effort by Florida, Texas, or Georgia to attack the 1st Amendment rights of websites, we see a Colorado or New York going in the other direction.

For every Republican bill in Congress demanding censorship of some types of content, you have Democrats seeking to censor other kinds of content. You can argue that the reasons behind one side's wish to censor is more pure than the other side's, but that's not how the 1st Amendment works -- and anyone who doesn't realize how any of these laws would be easily (and widely) abused by the other side has not paid any attention to the history of how speech suppressive laws work.

Entering into this fray, we have Washington state Governor Jay Inslee, who, at the beginning of the year, announced plans for a law to criminalize "false speech" about elections.

“Soon, legislation will be introduced in the state House and Senate that would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections. The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness," Inslee said.

He claimed, dubiously, that such a law is okay under the Brandenburg test, that says speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action can be restricted. But, that's a very stringent test, and lies about elections are almost never going to rise to that standard.

The actual bill appears to be wildly unconstitutional, even as it tries to write itself into the Brandenburg standard:

Every elected official and candidate who has filed for public office under chapter 29A.24 RCW and who knowingly makes false statements or claims regarding the election process or election results, which statements or claims are made for the purpose of undermining the election process or election results and are directed to inciting or producing imminent lawless action and such statements or claims produce such action, related to any election conducted in the state, is guilty of a gross misdemeanor punishable under RCW 9A.20.021 and, if convicted, immediately forfeits the elected office.

This is already problematic on multiple levels. If the speech already meets the Brandenburg test, then it's unclear why a new law is needed. But, furthermore, how do you distinguish "undermining the election process" from... engaging in "get out the vote" campaigns or trying to get people not to vote. The definitions don't help much here, as deterring a voter from voting freely is included as "undermining the election process" but is encouraging a voter to vote one way -- or even just to stay home and not vote -- actually "undermining the election process" or is it just a standard part of electioneering?

Indeed, such a law would almost certainly be widely and dangerously abused by those in power. An awful lot of politicians (and just partisans in general) will always claim that folks on the other side are "lying about elections." Sometimes they are. Sometimes they misspeak. Sometimes they mislead. Sometimes they say things out of context. Sometimes they exaggerate. But that shouldn't result in potential jail time.

But, under this law, you can see that opponents of politicians on both sides of the political debate would almost certainly bring cases under this law claiming random statements "undermine the election process" in an attempt to (1) waste time, resources, money, and attention of candidates, and (2) in the hope that maybe they win one and force that candidate to forfeit elected office.

And that's not even touching on the simple fact that political speech is the most important speech to be protected, and anything deliberately criminalizing political speech is an incredibly dangerous decision.

As more and more people have pointed out just how unconstitutional this is, rather than admit the problems of the bill, Inslee is doubling down. He recently defended this plan with a bunch of nonsense. His office highlights that a couple of constitutional law professors have looked over the bill and kinda shrugged and said "maybe it doesn't violate the 1st Amendment?" But when your strongest supporting comment -- from notoriously partisan law professor Laurence Tribe -- starts out with this giant caveat:

I can't say with complete confidence that the Governor's elections/democracy bill will in the end survive all judicial challenges...

Then perhaps it should be a sign that your bill has serious problems.

Inslee's speech in support of the bill is not just ridiculous, but it's simply astoundingly ignorant of how his own political enemies would turn this bill around on him:

Politicians are not above anyone else who would incite violence by knowingly, recklessly, or maliciously spreading lies about lawfully run elections.

The Big Lie, that we can’t trust our democracy to count the votes, has become a weapon. It’s being used all over America — including our state — and it will again incite violence. There are many examples where the law punishes lying on official documents or under oath — and I believe some standard should apply here.

Using their power or popularity, they lie — whether knowingly, recklessly or maliciously — to foment violence against others and against the foundations of American democracy. By asserting a right to violently subvert democracy, they assert the right to overturn the popular will determined by elections, if that’s the only way they think they can achieve power. Their intent is to harm.

Lots of 1st Amendment lawyers have looked at the various aspects of the Big Lie and concluded that it would be nearly impossible to get any politician on claims that they incited imminent violence -- even those who spoke at the rally on January 6th right before a mob of clueless, ignorant insurrectionists besieged the Capitol.

But, just put this law in the hands of the proponents of the Big Lie and think how this plays out. Those people have no compunction at all about insisting that those who say that Biden clearly and easily won the election, that there was no meaningful evidence of fraud, and that our elections were some of the most secure ever... that they are the ones lying about an election and that they are the ones inciting violence.

In other words, this would become a tool for grievances by anyone in politics against opponents, whether based in reality or in delusions.

The 1st Amendment prohibits these kinds of laws for that very reason.

So many of these laws seem to be written in the naïve belief that political opponents will never use those laws or never be in power themselves. And that is a very dangerous assumption, which historically never seems to hold up.

Filed Under: 1st amendment, disinformation, elections, free speech, jay inslee, lies, washington