Utah Governor Vetoes Ridiculous Unconstitutional Content Moderation Bill; Makes His Brother-in-Law Sad

from the silly-nonsense dept

Earlier this month, we noted that, to close out its session, the Utah legislature decided to pass two separate blatantly unconstitutional bills. One requiring porn filters on internet-connected devices, and the other that tried to overrule Section 230 (something states can't do) and require all "social media corporations" to employ an "independent review board" to review content moderation decisions. It also says that social media companies must moderate in an "equitable" manner (whatever that means).

We went through all of the reasons why the bill was unconstitutional, as did others in Utah. In response, the bill's sponsor, Senator Michael McKell, gleefully told a local TV news station that he looked forward to wasting Utah taxpayers' hard earned money by defending it in court (he didn't say that it would be wasting the money -- that's just us noting that it would be throwing away their money since the law is so clearly unconstitutional).

Thankfully, Utah Governor Spencer Cox (who happens to be Senator McKell's brother-in-law) has decided to veto the bill -- his very first veto (as we noted earlier, he chose to sign the other unconstitutional bill about porn filters).

Oddly, Cox's office released two separate statements regarding the veto -- only one of which notes that the bill was likely unconstitutional, while the other one seems to act like the bill just needs a few technical tweaks. It's almost as if he's trying to have it both ways and address two different audiences with two very different statements. The official veto statement makes it clear that the bill has serious constitutional issues:

Whatever course of action we take to protect online speech should seek to fully uphold the values enshrined in the First Amendment. While it is clear that something must be done, I believe that S.B. 228 raises significant constitutional concerns. And while I am proud that Utah is leading the effort to protect individuals' speech on the internet, I believe we will be well served to continue further coordination with our sister states to ensure faire access to the nation's largest public square.

Um, yeah, no. The government does not get to force anyone to host anyone's speech. That's not how it works. At all. The very notion of it is against the principles of the 1st Amendment.

The other statement, that Senator McKell himself posted to Twitter (after whining about the fact that his brother-in-law vetoed his bill) pretends that there are real serious issues involved in all of this, rather than silly, unconstitutional performative nonsense.

That statement doesn't even mention the constitutional issues and instead suggests that there were merely "technical issues" that got in the way (apparently some in Utah think the 1st Amendment's prohibition on compelled speech, as well as the Constitution's Commerce Clause are merely "technical issues").

Gov. Spencer Cox vetoed S.B. 228 Electronic Free Speech Amendments, with consent from the Senate President, Speaker of the House and bill sponsors. After conversations with the legislative and executive branches, this action was jointly determined as the best path forward due to technical issues. Censorship by tech companies is a serious concern, and this action will not hinder nor prevent Utah from finding the right policy solution.

“The sponsors of this bill have raised valid questions about the impact social media platforms can have on public discourse and debate,” said Gov. Cox. “Our country continues to grapple with very real and novel issues around freedom of speech, the rights of private companies and the toxic divisiveness caused by these new forms of connection, information and communication. While I have serious concerns about the bill, I appreciate the willingness of the bill’s sponsors to continue to seek a better solution. Utah must be a leader in this space and I look forward to engaging with legislators and social media companies to address these legitimate concerns.”

S.B. 228 had made significant headway and elevated Utah’s position in conversations with big tech corporations. Utah policymakers along with the governor will work closely with stakeholders to ensure all Utahns have an equal opportunity to exercise their First Amendment right.

Um, yeah, you see, the 1st Amendment blocks the government (including the government of Utah) from making laws that impact individuals' rights to free expression. The government cannot seek to force private companies to host speech. So the very idea that they need to step in to make sure that "Utahns have an equal opportunity to exercise their First Amendment right" is nonsense.

Even more bizarre is that Cox allows his brother-in-law, who wrote the bill, to put in a completely nonsensical statement into the press release claiming (laughably) that it's actually the content moderation decisions of private companies that must violate the 1st Amendment:

“I appreciate the commitment from stakeholders who have agreed to work with the Legislature to craft a better solution that will increase transparency within social media corporations,” said Sen. Mike McKell. “Censorship practices are un-American and likely unconstitutional. In Utah, we defend the right to freely express opinions and views, regardless of political or religious affiliation. The outcome of S.B. 228 is not ideal; however, the issue of free speech and online censorship remains a priority and policy will continue to be refined throughout interim.”

That's not how any of this works. You don't get to force private companies to moderate the way the government wants them to moderate. That is what's unconstitutional. Utah: elect better people who will actually stand up for your constitutional rights, not try to demolish them while pretending that their attacks on the Constitution are no problem at all.

McKell further notes that as soon as the legislature is back in session he'll introduce a new version of his unconstitutional bill. I will take a wild guess and predict it will be equally unconstitutional. Especially since almost everyone involved in this ridiculous process keeps saying the same stupid things:

“Free speech is one of our most cherished American values and essential to democracy,” said President J. Stuart Adams. “With the rise of social media, the issue of censorship has become increasingly prevalent, and the need for corporation transparency has proven necessary. While I support the concept and ideas of S.B. 228, after conversations with Gov. Cox, Speaker Wilson Sen. McKell and Rep. Brammer, we decided continuing the discussion regarding online censorship will be the most productive path forward. Together as Americans, we must ensure the right to speak freely remains intact, and I look forward to addressing this issue in the near future.”

Everyone has the right to speak freely. What they do not have the right to do is to force others to host their speech or to tell them how they can make editorial and moderation decisions. That is an attack on their 1st Amendment rights. It would be nice if elected officials in Utah could understand this fundamental point behind the 1st Amendment. Tragically, that seems unlikely.

Filed Under: 1st amendment, compelled speech, content moderation, michael mckell, spencer cox, utah

Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much

from the ooooooh-boy dept

Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing -- somewhat out of nowhere -- that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you're unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It's the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits -- often by those in power, against those who criticize.

Now, a DC Circuit appeals court judge -- and close friend of Thomas's -- is suggesting that the court toss that standard. And his reasons are... um... something quite incredible. Apparently, he's mad that the media and big tech are mean to Republicans, and he's worried that Fox News and Rupert Murdoch aren't doing enough to fight back against those evil libs, who are "abusing" the 1st Amendment to spew lies about Republicans. As you'll see, the case in question isn't even about the media, the internet, or Democrats/Republicans at all. It's about a permit in Liberia to drill for oil. Really. But there's some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a "public figure," then they need to show "actual malice" to prove defamation. The actual malice standard is widely misunderstood. As I've heard it said, "actual malice" requires no actual malice. It doesn't mean that the person making the statements really dislikes who they're talking about. It means that the person making the statements knew that the statements were false, or made the statements "with reckless disregard for the truth." Once again, "reckless disregard for the truth" has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a "high degree of awareness" that the statements are probably false or "entertained serious doubts as to the truth" of the statements. In other words, it's not just that they didn't do due diligence. It's that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that's on purpose. That's how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech -- but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that's why Clarence Thomas's attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution didn't set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can't be forced to face pointed criticism. From his statement:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

In the two years since he wrote that, thankfully, there's been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on "senior status" since 2000. But apparently he's got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we'll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past -- including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal -- the largest ever for Liberia -- was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia's Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to "natural resource exploitation" put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC's anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC's anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously “daunting.” McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). A plaintiff must prove by “clear and convincing evidence” that the speaker made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Jankovic III, 822 F.3d at 589–90 (second part quoting New York Times Co., 376 U.S. at 279–80). “[A]lthough the concept of reckless disregard cannot be fully encompassed in one infallible definition,” the Supreme Court has “made clear that the defendant must have made the false publication with a high degree of awareness of probable falsity,” or “must have entertained serious doubts as to the truth of his publication.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted) (internal quotation marks omitted); see also id. at 688 (using these formulations interchangeably). The speaker’s failure to meet an objective standard of reasonableness is insufficient; rather the speaker must have actually “harbored subjective doubt.” Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting -- even highlighting that the plaintiffs in the case didn't even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. “In Global Witness’s story,” the dissent asserts, “Exxon was the briber,” Dissenting Op. at 1, yet the report admits that “Global Witness ha[d] no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring,” Report at 31.

Critically, however, neither Tah nor McClain advances this theory—in their briefing to us, they never even mention the sentence on which the dissent relies. They make four specific arguments in support of their claim that Global Witness possessed actual malice, supra at 8, not one of which is that Global Witness had no evidence that Exxon was the briber, and for good reason. At most, the report implies that NOCAL, not Exxon, was the briber, thus rendering any lack of evidence as to Exxon’s direction or knowledge of the payments totally irrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when our dissenting colleague surfaced his theory at oral argument, it was so foreign to appellants’ counsel that our colleague had to spoon-feed him after he failed to get the initial hint. See Oral Arg. Tr. at 10 (“Well, no, it’s worse. Isn’t it stronger than that, counsel? We have no evidence.”). As our dissenting colleague himself has made clear, “we do not consider arguments not presented to us.” Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put another way, “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he's going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It's... quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to the actual malice question (my disagreement with the Majority is much broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the "briber" in this case, though the reason that's important seems fairly tortured, so I won't even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is "inherently implausible" and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majority’s assertion that this argument was never made by the Appellants leads me to wonder whether we received the same briefs. In my copy, Appellants argue that “Global Witness subjectively knew that it had not been able to determine whether the payments of $35,000 to Christiana Tah and Randolph McClain were corrupt bribery payments. Yet . . . Global Witness proceeded to present to readers the defamatory message that in fact [] Tah and [] McClain had taken bribes.” Appellant Br. 36 (emphasis in original). That sounds to me a whole lot like accusing Global Witness of publishing its story with no evidence to back it up. The Majority, moreover, faults me for assessing the inherent (im)plausibility of Global Witness’s story, without a specific request from Tah and McClain to do so. But (as discussed) “inherently implausible” is a legal standard by which we assess Appellants’ arguments—not an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.

He at least acknowledges that it would be "difficult" to get the Supreme Court to "overrule such a 'landmark' decision," noting correctly that it would "incur the wrath of press and media." And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another "similarly illegitimate constitutional decision" -- one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that "we must guard against disdain for the judicial system." Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb. That is the real attack on the Constitution, in which—it should go without saying—the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate. See 1 The Records of the Federal Convention of 1787, at 138, 140 (Max Farrand ed., 1911). It will be recalled that maintaining the Brezhnev doctrine strained the resources and legitimacy of the Soviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity.

And then it's all "those media orgs are so mean to my friends."

Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.

Uh... what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) (“Within a few hours, Facebook announced that it would limit [a New York Post] story’s spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.”).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don't worry, Judge Silberman wants you to know that at least there's Rupert Murdoch to step in and balance the scales at least somewhat. Really. I'm not kidding.

To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal’s editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists -- without any actual evidence, because none exists -- are "biased" against his Republican friends.

Of course, I do not take a position on the legality of big tech’s behavior. Some emphasize these companies are private and therefore not subject to the First Amendment. Yet—even if correct— it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone, in any institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose’s insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192–197; see also id. at 169–77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election. Id. at ix, 201–33. And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.

And that's how it closes. Even if there are legitimate reasons to question the "actual malice" standard, to go on an unhinged Fox News-style rant about "anti-conservative bias" seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court

China Warns Microsoft That LinkedIn Isn't Suppressing Enough Voices

from the now-that's-censorship dept

As a bunch of US lawmakers keep threatening new laws that would force websites to remove more content, we should note just how much such moves reflect what is happening in China. The NY Times reports that Microsoft is in hot water in China, because LinkedIn apparently has been too slow to block content that displeases the Chinese government. As the article notes, LinkedIn is the one major US social network that is allowed in China -- but only if it follows China's Great Firewall censorship rules.

If you're not familiar with how that works, it's not that the government tells you what to take down -- it's just that the government makes it clear that if you let something through that you shouldn't, you're going to hear about it, and risk punishment. And it appears that's exactly what's happened to Microsoft:

China’s internet regulator rebuked LinkedIn executives this month for failing to control political content, according to three people briefed on the matter. Though it isn’t clear precisely what material got the company into trouble, the regulator said it had found objectionable posts circulating in the period around an annual meeting of China’s lawmakers, said these people, who asked for anonymity because the issue isn’t public.

As a punishment, the people said, officials are requiring LinkedIn to perform a self-evaluation and offer a report to the Cyberspace Administration of China, the country’s internet regulator. The service was also forced to suspend new sign-ups of users inside China for 30 days, one of the people added, though that period could change depending on the administration’s judgment.

Or, Microsoft/LinkedIn could do the right thing and tell the Chinese government "sorry," and just stop doing business in China. The NY Times article even notes that LinkedIn doesn't even get that much usage in China. So why bother with this hassle in a way that makes the company look so bad?

Also, I'll just note the grand irony of Microsoft doing this just a week or so after Microsoft's President Brad Smith testified before Congress on how "technology companies" must support "democracy." Of course, in that context, Smith was just doing it to attack Google and the open web. But, hey, as long as it can get money from China, apparently all that "democracy" stuff isn't so important to Microsoft any more.

Filed Under: censorship, china, great firewall, social media
Companies: linkedin, microsoft

Judge Tosses Laughably Stupid SLAPP Lawsuit The Trump Campaign Filed Against The NY Times

from the because-it-was-never-meant-to-win dept

A little over a year ago we wrote about a laughably stupid SLAPP suit that the Trump campaign, represented by Charles Harder, filed against the NY Times. As we noted at the time, the lawsuit appeared to have no intention of succeeding -- it was purely performative nonsense. The lawsuit claimed that an opinion piece by Max Frankel was defamatory because it noted that whether or not there was any explicit collusion between the Trump Campaign and Russia, it didn't matter, since both sides seemed to expect certain outcomes and allowed them to act accordingly.

We also pointed out that the lawsuit completely misrepresented the article, pretending that Frankel's thesis -- again, that there didn't need to be any explicit deal -- was Frankel saying that there was "collusion" between the two. The case made no sense no matter how you looked at it. Frankel's article was an opinion piece -- and opinions aren't defamatory. It didn't allege what the campaign's lawsuit says it alleged, and there was no way in hell it could possibly meet the actual malice standard necessary for defamation.

It took a year, but the Supreme Court of New York (which, contrary to its name, is more like a district court), has tossed out the lawsuit, though denying the NY Times' request for sanctions against Harder. As we expected, this was not a difficult decision for the court to come to. First, it was obviously opinion, and thus not defamatory:

First, while the complaint alleges that the terms used in the article, such as “deal” and “quid pro quo,” are defamatory and false, Mr. Frankel’s commentary in his article is nonactionable opinion, and the overall context in which the article was published, in the opinion section of the newspaper, signaled to the reader that “the broader social context and surrounding circumstances [indicate] that what is being read . . . is likely to be opinion, not fact.” Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993) (internal quotation marks and citation omitted). This is because “[t]he dispositive inquiry, under either Federal or New York law, is ‘whether a reasonable [reader] could have concluded that [the articles were] conveying facts about the plaintiff.’” 83 N.Y.2d at 152 (alterations in original) (quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139 (1992)); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (finding that statements of opinion are not actionable because “there is no such thing as a false idea”).

Then there's the actual malice problem -- in that the campaign failed to make any real arguments that would show that Frankel knew his statements were false or were made with reckless disregard for the truth (meaning he had substantial doubts about their truth):

Third, even if Mr. Frankel’s commentary was actionable as factual assertions, and even if such assertions were of and concerning the Trump campaign, the complaint fails to allege facts sufficient to support the requirement that the Times published the challenged statements with actual malice, meaning “knowledge that [the statements] were false, or [made] with reckless disregard for the truth.”... In this regard, bias, or ulterior motive does not constitute actual malice... This heavy burden exists because news organizations function as a platform for facilitating constitutionally protected speech on issues of public concern and courts will not impose defamation liability against these entities absent a clear showing of actual malice.

There was one other reason for the dismissal... which I am a bit confused about. The judge claims that the Campaign (the plaintiff in this case) has no standing, since the comments in the article were not about it:

Second, the challenged statements are not “of and concerning” plaintiff, which is a necessary element for a defamation action. For example, in Lazore v. NYP Holdings, Inc., 61 A.D.3d 440 (1st Dep’t 2009), the Appellate Division, First Department dismissed a complaint alleging defamation because “the offending statements were directed against a governing body . . . , rather than against its individual members.” 61 A.D.3d at *1. Further, a corporate entity has no standing to sue over statements that concern an entity’s employees or affiliates, but not the entity itself.... Here, the focus of Mr. Frankel’s column was the former President’s associates and family members, not the Trump campaign itself.

I find that a lot less compelling, since the thrust of the article was about the Campaign, as represented by the President's associates and family members, but either way this case was getting dismissed for the other reasons.

As for sanctions, the judge rejects them... with no explanation at all. However, with New York now having a shiny new more useful anti-SLAPP law, I do wonder if the Times might now use that to seek fees...

Filed Under: 1st amendment, actual malice, anti-slapp, charles harder, defamation, donald trump, max frankel, new york, opinion, slapp, standing

Kentucky Senators Pass Bill That Would Make It A Crime To Say Mean Things To Cops

from the finally-getting-'contempt-of-cop'-added-to-the-law-books dept

A bill [PDF] that's likely headed to a dead end at the governor's desk or a state court targets protected speech that might make some cops angry. The bill may end up dead, but the Kentucky Senate still needs to explain how it let the bill pass, considering it contains this very, very stupid addition, presumably courtesy of the bill's sponsor, Sen. Danny Carroll -- a former police officer.

The bill converts free speech into a second degree misdemeanor. And it only targets speech that targets certain public employees.

Accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.

That's right. Seven of ten Senators want to make it illegal to say bad things to police officers. Anything that "provokes" a cop is off-limits. And it assumes cops are "reasonable and prudent people." Maybe they are. But "reasonable and prudent" public servants -- especially those frequently engaged in heated situations where they're supposed to be the keepers of peace -- should have a higher bar to reach before they react to these undefined fighting words.

We should expect more from our cops. These state Senators want us to expect less. This conduct was never illegal before, but following protests in the state over killings by cops, people like Danny Carroll want to codify "contempt of cop."

Carroll insinuates cops are weak individuals who aren't able to keep their cool when confronted by unhappy members of the public. Maybe this is what's actually true. And a law like this allows them to act on their worst impulses and -- never mind the First Amendment -- actually punish people for engaging in what should be protected speech.

Behold your jackbooted snowflakes, apparently in need of protection from… syllables.

"In these riots, you see people getting up in officers' faces, yelling in their ears, doing everything they can to provoke a violent response," Carroll said, according to the Louisville Courier-Journal.

Yeah. That's kind of thing is going to happen during protests. And it's not a crime anywhere. According to Carroll's former cop mentality, it's the people who need to be punished for making cops angry, rather than cops for violating people's First Amendment rights.

The beatings will continue until police morale improves.

"I'm not saying the officers do that, but there has to be a provision within that statute to allow officers to react to that. Because that does nothing but incite those around that vicinity and it furthers and escalates the riotous behavior," he continued.

Carroll could not be more wrong. Cops should not be "allowed" to "react" to angry people saying angry things -- not by internal policy and very definitely not by state mandate. That's not how the law works and that sure as shit isn't how the Constitution works.

Everything Carroll offers in defense of his indefensible bill is… well, indefensible.

Carroll noted the bill wasn't about limiting lawful protest "in any way, shape, form or fashion."

"This country was built on lawful protest, and it's something that we must maintain — our citizens' right to do so. What this deals with are those who cross the line and commit criminal acts," he said.

Ah, but it does limit lawful protests. It makes it illegal to say mean things to cops, which is something that happens at lawful protests. And no one crosses the legal line by being mean to cops. The law makes the logic of his statement conveniently circular. Make something that wasn't previously illegal illegal and suddenly things that never "crossed the line" into criminality will now will cross the line into criminality.

Saying protesters shouldn't do things that are illegal is incredibly disingenuous when you're passing an anti-protest omnibus that makes angering a police officer using nothing more than words a criminal offense.

And that's not the only thing the bill does. It redefines "riot" to mean any group of more than five people that "substantially obstructs law enforcement or other government functions." It provides sentence enhancements for engaging in rioting even if the person did not directly engage in the riots but committed a crime anywhere else "with knowledge that a riot was occurring." It denies probation or early release for anyone convicted of this new crime. It turns resisting arrest and obstructing traffic from misdemeanors to felonies if it occurs while a riot is taking place.

And it fights defunding efforts by mandating steadily increasing funding for law enforcement agencies:

Governmental entities responsible for the funding of the various law enforcement agencies shall maintain and improve their respective financial support to the Commonwealth's law enforcement agencies…

It's a whole pile of retaliation with some stupid dumped on top of it. These legislators think cops shouldn't have to deal with the consequences of their actions -- consequences that sometimes include violent riots. But then they don't think cops should just have to stand there and take when angry people shout angry things at them. These legislators are wrong about almost all of this, but especially wrong about that. If the governor doesn't send this pile of idiocy packing, a court will soon enough.

Filed Under: 1st amendment, insults, kentucky, police, speech, taunting

Iowa Prosecutors Move Ahead With Prosecuting A Journalist For Being Present At A Protest

from the those-people-are-interested-in-facts!-get-'em! dept

There's an ongoing trial in (of all places) Iowa that cuts to the heart of First Amendment protections for journalists. Andrea Sahouri, an award-winning journalist for the Des Moines Register, was arrested last May during a protest resulting from the killing of an unarmed black man by Minnesota police officer Derek Chauvin.

Despite attempting to identify herself as a member of the press, Sahouri was hit with a tear gas canister, pepper sprayed, and arrested for "failure to disperse." According to Des Moines police, Sahouri wasn't wearing any press credentials, something that has been acknowledged by both Sahouri and her editor at the Register.

However, it's also not clear at this point that any order to disperse had been given, making anyone -- much less a journalist -- subject to arrest for not immediately leaving the area. The lack of press credentials could be a problem, but it's also being argued Sahouri was known by officers and should have been recognized as someone covering the protest, rather than participating in it. Journalists generally aren't subject to orders to disperse.

Her newspaper issued this statement in its editorial against her prosecution:

Journalists cover protests to serve as the eyes and ears of the public, to ensure free speech and assembly rights are upheld and to seek out the truth of what unfolds, whether a protest is peaceful or violent and whether law enforcement’s response is viewed as proportional or excessive.

And this clash of press freedom vs. riot control isn't limited to Iowa. It's been happening all over the nation. Journalists have been targeted with riot control weapons as well as arrested for covering protests. And there are similar cases all around the nation, as the Register points out:

The U.S. Press Freedom Tracker has documented an alarming increase in arrests and detainment of journalists in 2020: at least 126, compared to nine in all of 2019. Most of them, like Sahouri’s, happened at protests as Americans took to the streets to demand change from their government, after the deaths of George Floyd and other Black Americans at the hands of police, and preceding and following the tumultuous November election.

Prosecutors believe they're doing nothing wrong, even though testimony at the trial appears to show Sahouri was moving away from police officers and the area they were seeking to control when she was arrested. This is the defensive statement issued by the prosecutor's office:

“We strongly disagree with how this matter has been characterized and will do our talking in the courtroom, which is the proper place to deal with this case."

The talking in the courtroom has begun. And there's already at least one troublesome detail. The officer performing the arrest could have presented an almost-indisputable record of the incident, but chose not to.

First, there's the footage that's actually available, which would appear to show the journalist moving away from police -- something that suggests she was exiting the area in response to an order to disperse.

Sahouri and Robnett can be seen coming around the corner shortly before police, but the camera angle does not show the spot where they were actually arrested.

Then there's the arresting officer, Luke Wilson, who -- despite being engaged in crowd control efforts -- decided none of it was worth documenting.

Wilson did not activate his camera for the arrest, and although it is possible to retrieve video after the fact, it was not done in time to save the footage from being overwritten. Wilson says he thought he activated the camera when he disembarked from a police vehicle, but didn't notice in the resulting chaos that it was not on.

Seems like something you'd want to verify before entering a chaotic scene that implicates any number of Constitutional rights and criminal acts. But the officer claims it was so chaotic he couldn't be bothered to expend the second or two needed to ensure his body camera was on. Even if we believe Wilson's lack of recording was accidental, it shows officers aren't following body camera protocol and will still choose to verify recording status only when it's convenient to them.

Then there's the police department itself. Its officers entered the scene broadcasting conflicting instructions:

Squad car public address systems can be heard in the background telling people to "disperse" and also "protest peacefully."

So, it can't be argued by the PD that a clear order to disperse had been given. If Sahouri wasn't engaged in violent acts or non-peaceful protesting -- something that's not only unlikely given her position as a journalist, but also according to the footage available -- the officers had no justification for this arrest. You can't tell people to do both but only choose to arrest those that followed one of the two orders: peaceful protesters.

This case isn't over yet. It will go before a jury. The facts don't look good for the Des Moines PD, which not only arrested a journalist, but did so despite her following at least one of the conflicting orders being issued by officers.

It might be a stretch to say there's been a concerted effort by law enforcement to target journalists during these protests. But it's undeniable that some officers and agencies have deliberately gone after journalists merely for documenting crowd control efforts. No one willing to engage in unjustified force wants to have their actions documented. And when that's the mindset, even those thoroughly protected by the First Amendment are considered enemies of the state.

Filed Under: 1st amendment, andrea sahouri, free speech, iowa, journalism, protests

State Court Says Tennessee's Anti-SLAPP Law Is Constitutional, Shuts Down Litigant Involved In Baseless Libel Litigation

from the maybe-work-on-your-reputation-rather-than-suing-third-parties dept

Tennessee is filled with awful legislators. Fortunately, despite itself, the legislature passed an anti-SLAPP law that appears to finally be putting an end to ridiculous libel lawsuits in the state. Prior to this, residents and libel tourists were abusing the law to do things like silence legitimate criticism and -- believe it or not -- sue a journalist for things said by someone he interviewed.

While the state legislature continues pissing tax dollars away asking the federal government to institute criminal penalties for flag burning and requesting state colleges forbid student-athletes from expressing anything other than reverence for the flag, state courts are quietly ensuring their better legislative efforts remain viable.

A short ruling [PDF] issued by a Tennessee circuit court says the state's anti-SLAPP law is not only constitutional, but serves a valuable purpose. (via Courthouse News)

The plaintiff -- Tiny House Chattanooga -- sued Sinclair Broadcasting after news coverage of the fallout from a reality program episode involving the tiny house manufacturer resulted in some acrimonious behavior by both parties: Mike Bedsole of Tiny House and the nominal recipients of his tiny house, Rebecah and Ben Richards. The couple was apparently promised a house -- and some TV coverage -- but received neither.

They went to court and because the title is in Bedsole's name, the judge considered the couple tenants and evicted them.

"Based on the fact that the builder has the title in his name he had to rule in position to the builder and he gave us 10 days to vacate the property. And during those 10 days the builder took the house off the property," he said.

The couple said they have repeatedly written to Bedsole asking where their home is, but have not received a response from him.

Bedsole sued Sinclair for KABC's coverage. KABC filed an anti-SLAPP motion asking for the defamation lawsuit to be dismissed. Bedsole then filed this cross motion, asking the court to examine the constitutionality of the state's anti-SLAPP law.

The anti-SLAPP law wins. Bedsole loses.

The TPPA, at least in the eyes of this court, is clearly predicated upon public policy concerns. "The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law…" T.C.A. 20-17-102. There can be no serious question that the intent of the legislature in passing this statute was to effect a more beneficial public policy.

To better benefit the public, the anti-SLAPP law allows for fee-shifting, placing the burden back on the party engaging in litigation solely for the purpose of silencing criticism. This is integral and constitutional, says the court.

This additional remedy is significant. [...] [A] greater burden has been placed upon the plaintiff than the mere requirements of Rules 8 and 12 of the Tennessee Rules of Civil Procedure.

However, that's not the only outcome available. Like any other litigation, the decision to shift fees still lies with the court. The new law simply provides another outlet for it to use should it decide the litigation has been pursued in bad faith.

The provisions of the TPPA do not mandate any particular result but leave the ultimate decision to within the discretion of the trial court. None of these provisions remove from the trial court the authority to interpret and apply the applicable law.

Since there's no removal of power, the law is constitutional. The challenge fails and Bedsole and his company will no longer be able to sue journalists for reporting on a housing dispute, no matter how unfavorable the coverage is to Bedsole. This ruling solidifies the state's anti-SLAPP law, making it more resilient against future challenges of its constitutionality. Bad faith litigants should be further deterred from filing bogus libel lawsuits and/or claiming the law bypasses the Constitution at the state level.

Filed Under: 1st amendment, anti-slapp, mike bedsole, tennessee
Companies: sinclair broadcasting, tiny house chattanooga

Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners

from the have-you-tried-not-being-assholes-all-the-time? dept

It's pretty clearly established you have the right to record public servants as they perform their public duties. There are a few exceptions, but for the most part, if you're not interfering with their work, record away. Public servants hate this, of course, but there's not much they can do about it. Sure, they can try to use local laws to shut down recordings, but those efforts have routinely been rejected by federal courts.

Enter the TSA and some agents who felt they shouldn't be recorded doing their work. The TSA may believe it's doing valuable national security work that can't be recorded by third parties, but it's actually doing nothing of the sort. There's nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.

The TSA agents in this case [PDF] felt they had a right to not be recorded. That's not actually a thing, as the court reminds them. (via the Volokh Conspiracy)

The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer's husband did not. TSA agents began their pat down of Dyer's husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was "impeding" the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.

Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to "order" Dyer to delete his recording. Which he did.

Smith ordered Dyer to delete the video while Staton watched. "Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone…"

The family was then allowed to leave. Staton recovered his deleted video. Then he filed this lawsuit.

The TSA claimed Dyer had no right to record TSA agents. It also said he had no cause of action and, even if he did, qualified immunity shielded the involved agents from this lawsuit.

The court disagrees. First, it points out the TSA's work isn't as essential as it thinks it is. It can't dodge a Bivens lawsuit by claiming some sort of national security exemption. The court says passenger screening does not implicate "diplomacy, foreign policy, or national security interests." Therefore, the TSA can't have the suit dismissed on those grounds. And that keeps Dyer's Fourth Amendment claim viable.

It also can't have it dismissed on qualified immunity grounds. As the court points out, the TSA's own policy allows passengers to record agents while they screen travelers.

Allowing damages in this case would not hamper TSA's efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents' ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

The TSA argued (wait for it…) that because it does not train agents to respect the Constitution, agents can't be sued for violating Constitutional rights. Ridiculous, says the court:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

Although Bivens has never been applied to First Amendment violations, the court chooses to apply it here because it's clearly established the public has a right to record public officials.

Courts across the country agree that incident to the "right to gather news," citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

[...]

[T]he defendants' demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff's First Amendment right…

And the right is clearly established.

According to the Fourth Circuit, "it is crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it." Here, Dyer sought to record, from about ten feet away, the TSA conducting a pat-down search of his husband. The TSA agents directed him to stop. Dyer's allegations fall squarely within this "crystal clear" right.

It's well-established people can record public officials in public. Officials can't pretend this right doesn't exist just because they don't want to be recorded. This has been clear for years. The chain of events here did nothing more than convert these TSA agents from public servants to lawsuit defendants. None of this needed to happen. And none of it was justified.

Filed Under: 1st amendment, dustin dyer, recording, transparency, tsa

Federal Court Says There's Nothing Wrong With Arresting Someone For Parodying A Police Department Facebook Page

from the satire:-unsafe-at-any-speed dept

You know what's always ripe for parody? Government agencies. You know who's often outlandishly upset about being parodied? Government officials.

Back in 2016, Parma, Ohio resident Anthony Novak created a fake Parma Police Department page on Facebook. It should have been clear to everyone the page was a parody. The fake Parma PD page posted announcements about a roving police van offering free abortions to teenagers, a plan to criminalize helping the homeless, and the PD "strongly discouraging minorities" from applying for positions with the agency.

Despite it being readily apparent this was not an official Parma PD page, Parma officers arrested Novak in March 2016. The page had only been live for 12 hours, but the PD claimed Novak's page "interrupted police operations." The Parma PD made the most of its apparently underutilized resources to stop this resident from making fun of it. To shut down a Facebook parody, the Parma PD deployed seven officers, three warrants, one subpoena, and hundreds of tax dollars to seize a bunch of electronic devices from Novak's house and throw him in jail. Novak spent four days in jail before being released and was ordered to report to a probation officer.

Novak was acquitted of the felony "disruption of service" charge. His ensuing lawsuit made its way to the Sixth Circuit Court of Appeals which refused to grant qualified immunity to Parma PD officers. Unfortunately -- despite indicating it strongly felt the PD's actions violated Novak's First and Fourth Amendment rights -- it refused to make a call on either issue, sending it back to the district court for more fact-finding.

Unfortunately, the lower court doesn't appear to have understood the message the Sixth Circuit sent. The Sixth Circuit said this looked like a pretty clear case of First Amendment retaliation, aided in part by a state law that appears to criminalize protected speech:

[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause.

The lower court's decision [PDF] says the Parma police did nothing wrong. The investigation and arrest was supposedly fueled by nothing more than good, honest police work. (via Courthouse News Service)

According to the district court, "messing with people" isn't protected First Amendment activity, even though that's the sort of thing parody and satire tend to do.

On the official Parma Police Department Facebook, Captain Riley notified the public that Novak’s Facebook page was a fake. But Novak replicated this warning and posted it on the fake page as well. Such conduct went far beyond mere parody or poking fun at the police and was consistent with the testimony of his roommate that Novak was using his Facebook page to “mess with people.” It was also evidence that Novak was trying to disrupt police operations.

As the district court sees it, because some people were misled by the parody, the PD had probable cause to arrest Novak for "disrupting" police service.

Novak’s conduct also confused some members of the public, leading them to believe that his was the real Parma Police Facebook page. When [Detective] Connor consulted with Law Director Dobeck, they reasoned that Novak’s conduct may have violated Ohio Rev. Code § 2909.04(B) with the following elements: 1)“knowingly;” 2) “using a computer;” and 3) “to disrupt, interrupt, or impair the functions of any police … operations.” And Connor’s investigation resulted in a finding of probable cause on each of those prima facie elements.

And if there was probable cause for an arrest, that eliminates not only Novak's Fourth Amendment claims, but his First Amendment claims as well.

Because defendants had probable cause, it is not necessary for this Court to decide whether the content of Novak’s Facebook page was protected by the First Amendment.

So -- as the US Supreme Court unhelpfully ruled -- you can retaliate against free speech as long as you can come up with law to "reasonably" abuse.

As for the claims of disruption, there doesn't appear to have been much of that. Nevertheless, the court finds that any disruption -- however non-disruptive -- established probable cause for Novak's arrest and the search of his residence.

One can legitimately question whether 11 calls to the police office from members of the public confused by Novak’s Facebook page was enough of an interference to warrant the expenditure of resources to investigate and prosecute Novak. But that was a judgment call for the police officers to make. So long as they had probable cause to believe that Novak had violated the law, which they did, the doctrine of qualified immunity justifiably shields them from personal liability.

Awesome. Bang up job there, Northern District of Ohio. As long as cops were mildly irritated and possibly eleven people on Facebook were misled by posts about roving abortion vans operating with the blessing of the Parma PD, someone can be arrested and charged for engaging in parody. Hopefully, this will be appealed. The Sixth Circuit sent it back saying more fact-finding needed to be done and strongly suggested it's the sort of thing that should be sorted out by a jury. The lower court decided none of that meant anything and went right back to its original findings in favor of the Parma PD and other officials involved in this free speech-thwarting effort.

Filed Under: 1st amendment, 6th circuit, anthony novak, arrest, free speech, ohio, parma, parma police department, parody, police

Illinois Lawmaker Proposes Unconstitutional Ban Of 'GTA' In Response To Carjackings

from the jacked-up dept

If ever there were a stupid, unconstitutional notion that appears to be evergreen, it must certainly be attempts at outright banning games from the Grand Theft Auto series. While a certain segment of public officials have long sought to blame video games generally for all the world's ills, the GTA series has been something of a lightning rod for attempted censorship. Honestly, it's not totally impossible to understand why. The game is a violent, humorous parody of modern American life and pop culture, taken to such extremes so as to artistically point out the flaws in our society.

You know... art.

Art which is protected by the First Amendment and thus protected by attempts at government censorship. Which doesn't keep public officials from trying to ban it anyway. The most recent example of this is one Illinois lawmaker suggesting the entire state ban sales of the game because of an uptick in car-jackings in Chicago.

An Illinois lawmaker has a new response to the recent surge in carjackings around the Chicago area -- banning a popular video game. State Rep. Marcus Evans said during a press conference Monday morning in south suburban Olympia Fields that video games are contributing to the carjacking surge across the area.  Evans said he plans to introduce a bill to ban sales of the game in Illinois.

"'Grand Theft Auto' and other violent video games are getting in the minds of our young people and perpetuating the normalcy of carjacking," Evans said. "Carjacking is not normal and carjacking must stop."

Unfortunately, artistic takes that reflect our society are normal and, in fact, celebrated. And while an uptick in crime is certainly a cause for worry, it's also worth noting that the last GTA game came out in 2013. Why the series is now a suddenly responsible for an increase in car-jackings goes unexplained by Evans, but seems to represent a massive flaw in his logic.

Evans is getting much of this from a local anti-violence activist, Early Walker.

Walker agreed with Evans' conclusion about the game, in which players steal cars as part of a larger plot of organized crime.

"Representative Evans and I have researched and concluded that these very young offenders of carjacking are greatly influenced by the Grand Theft Auto video game," Walker said. "I truly believe that there is bipartisan support in Springfield to ban this game from being sold in Illinois."

Fortunately, it could have the support from literally every citizen in the state of Illinois and it still wouldn't matter. Banning the game would be plainly unconstitutional. The Supreme Court codified video games as protected speech protected from government bans in 2011. A fact, actually, that Illinois lawmakers should damned well be aware of. So, this is either grandstanding to accomplish nothing, or it's an admission that Illinois has elected incompetent buffoons to its state government.

Neither conclusion is particularly encouraging.

Filed Under: 1st amendment, carjackings, gta, illinois, marcus evans, video games