Tennessee Politicians Ask State Colleges To Forbid Student-Athletes From Kneeling During The National Anthem

from the let's-just-keep-setting-civil-rights-back dept

Is it too late to force Tennessee to secede from the Union and become some sort of free-floating non-nation we can freely raid to shore up our non-wartime stockpiles of tobacco and country music?

To be fair, I'll list Tennessee's positives first. Within the last year, a court struck down a law that forbade the use of entertaining hyperbole by political candidates, and legislators finally passed an anti-SLAPP law with teeth -- the latter of which should head off bullshit like someone suing a reporter for things someone else said.

On the other hand, legislators continue to ignore its position as a backwater state in terms of internet access. And legislators are still doing extremely stupid things, like asking federal legislators to bypass the First Amendment and Supreme Court precedent to jail people for burning the flag.

Here's the latest broadside against constitutional rights and common sense, via pretty much every member of Tennessee's Republican leadership. Let's go direct to the source of this hideousness, who provides the question this legislative bullshit begs:

If you can't see the tweet, Tennessee-located First Amendment warrior Daniel Horwitz asks:

"Hey Alexa, how do you lose judgment on the pleadings?"

Here's what Tennessee Republicans are demanding [PDF]:

In light of recent news reports, we want to address the issue of our student athletes kneeling during the National Anthem prior to sports competitions. The National Anthem is a symbol of pride for America. It lifts our spirits toward the ideals upon which our great country was founded: that all are created equal and endowed by their Creator with certain unalienable rights including life, liberty, and the pursuit of happiness. Written during the Battle of Baltimore, the National Anthem represents not only the freedoms we enjoy as Americans but the ultimate sacrifice paid by many in order for us to enjoy those freedoms.

One of those "freedoms" would be the freedom to criticize their government, their nation, the things it stands for, etc. But whatever.

During athletic competitions, our student athletes represent not only themselves, but also our universities and all the citizens of this state, many of whom view this form of protest as offensive and disrespectful the very thing our National Anthem represents.

Shorter Tennessee reps: we will allow the hecklers to veto this freedom.

While we recognize our student athletes may express their own views on a variety of issues in their personal time, we do not condone any form of protest that could be viewed as disrespectful to our nation or flag while they are representing our state universities. When they don the jersey of a Tennessee university, they step out of their personal roles and into the roles of an ambassador for our state. We expect all those who walk onto the field of play to show respect for our National Anthem.

This is an expectation you can't demand. Even if they refuse to kneel, you can't make them "respect" the National Anthem. Respect is earned. It can't be mandated.

To address this issue, we encourage each of you to adopt policies within your respective athletic departments to prohibit any such actions moving forward. We view this as a teachable moment in which administrators may listen to concem from students but also exercise leadership in stating unequivocally what the National Anthem means to this nation and explain proper times, places, and manners for expressing protest. While we work together to make Tennessee a better place for all our citizens, let's not focus on what divides us but on what unites us which is being an American.

Ah. A "teachable moment." In this context, it means "teaching" students who are upset with the status quo to suck it up and get it up any time the flag appears and its theme music starts playing. It means ignoring responses that don't align with Team USA jingoism in order to "unite" everyone under the state Republicans' idea of what's acceptable behavior by student-athletes.

And it's clear that any time people like this refer to "divisiveness," they're only concerned that people don't share their views, rather than seeking a way to engage honestly with people whose viewpoints differ from theirs. The nation may be divided, but it can only be united under this plan, which would force everyone to revere the flag the way these ass-hats would prefer they do.

Nice work, reps. How did you say you like your mockery? Relentless? Good. Let the shit hit your fans, you insufferable losers.

That being said, this won't necessarily be an easy thing to prevent. The government stepping in to tell student-athletes how they can behave is on the wrong side of the Constitution, considering these universities are publicly funded.

On the other hand, courts have given some leeway to schools to add additional rights restrictions to extracurricular activities, which means they may be allowed to tell students how to behave during sportsball games, even if they can't restrict their speech elsewhere. Sports participation is voluntary and generally comes with strings attached.

But Horwitz isn't wrong. This certainly won't be an easy case for the government to win if this flag-molesting, masturbatorial fantasy becomes a reality. Criticism of the government tends to receive the most First Amendment protection and taking a knee during the anthem cannot possibly be seen as anything other than criticism.

Of course, the universities are free to politely decline this ridiculous request. But it would be so much better if they'd send a message of their own stating that they respect their students' rights far more than they respect pandering to the worst aspect of state politicians' voter bases.

Filed Under: 1st amendment, civil rights, free speech, grandstanding politicians, kneeling, protests, sports, students, tennessee

Attacks On Internet Free Speech In Malaysia And Indonesia Demonstrate Why Section 230 Is So Important

from the intermediary-liability-is-all-about-free-speech dept

Two separate stories from Southeast Asia help demonstrate why intermediary liability protections like Section 230 are so important for free speech online (and why it's positively ridiculous that some have argued that 230 is an attack on free speech). The first is an article about a court case in Malaysia, in which a small independent media site has been fined an astounding amount: $124,000 over five reader comments that a court said violated the law. Notably, the website in question, Malaysiakini, had removed those comments relatively quickly. But the court said that the removals weren't fast enough:

A seven-judge appeals court panel found Malaysiakini guilty of contempt of court and ordered it to pay a fine of nearly $124,000, more than double the amount sought by prosecutors, for five comments left by readers.

There was a conflict of interest here: the five comments were insults about the judiciary who then went on to issue the fine itself. The court argued that Malaysiakini should have pre-vetted every comment before allowing them on the site:

The readers’ comments were posted on a story about the Malaysian judiciary, which closely guards its reputation. They were later removed from the article, but not quickly enough to avoid charges.

In their verdict, the judges concluded that Malaysiakini should have vetted the comments and refrained from posting those that constituted contempt of court.

The site argued -- quite reasonably -- that it shouldn't be held liable for user comments, but the court rejected that argument.

The panel rejected defense arguments that Mr. Gan and the news outlet were not legally responsible for their readers’ comments and that prosecutors should have been required to prove that they intended to publish scandalous material.

The article goes on to note what a massive chilling effect this will have for speech in Malaysia, where most media organizations are propaganda operations for the government. Malaysiakini is one of a group of small independent sites that have been known to challenge the government (another such site, Sarawak Report, was blocked in Malaysia and resulted in all of the website Medium being blocked in Malaysia for a few years after the site started publishing on Medium.

Of course, this shouldn't be a surprise. Right after the mess with Sarawak and Medium, the Malaysian government put in place a new law that focused on removing intermediary liability protections for service providers, so the government could hold them liable for speech it disliked. And now we see how that's working out.

That's also why people should be very, very concerned about what's happening nearby in Indonesia, where a truly draconian new intermediary liability regulations has been proposed. Rather than protecting intermediaries that enable speech, this law -- called MR5 -- seems designed to lead to widespread censorship. The law will require websites to register with the government, and must give law enforcement full access to any user content -- including private communications and private storage. Companies based outside of Indonesia are still required to appoint a local contact or they could be blocked entirely.

As for intermediary liability, a key part of the law is that a website must takedown "prohibited information" even when posted by a user -- but that includes any information that "creates community anxiety" or lets people know how to access such content:

This language is extremely concerning. Compelling Private ESOs to ensure that they are not “informing ways'' or “providing access” to prohibited documents and information, in our interpretation, would mean that if a user of a Private ESO platform or site decides to publish a tutorial on how to circumvent prohibited information or content (for example, by explaining how to use VPN to bypass access blocking), such a tutorial itself could be considered prohibited information. Use of a VPN itself could be considered prohibited information. (The Communications Minister has told Internet users in Indonesia to stop using Virtual Private Networks, which he claims allow users to hide from authorities and put users’ data at risk.)

The speech restrictions go pretty far as well:

Article 9(3) includes within  “prohibited content and information” any speech that violates Indonesian law and regulations. GR71, a regulation one level higher than MR5, and the later Law No. 11 of 2008 on Electronic Information and Transactions, both use similar vague language without offering any further definition or elucidation. For example, Law No. 11 of 2008 defines “Prohibited Acts” as any person knowingly and without authority distributing and/or transmitting and/or causing to be accessible any material thought to violate decency; promote gambling; insult or defame; extort; spread false news resulting in consumer losses in electronic transactions; cause hatred based on ethnicity, religion, race, or group; or contain threats of violence. We see a similar systematic problem with the definition of “community anxiety” and “public order,” which fails to comply with the requirements of Article 19 (3) of the ICCPR. 

Additionally, Indonesia’s criminal code considers blasphemy a crime—even though outlawing "blasphemy" is incompatible with international human rights law. The United Nations Human Rights Committee has clarified that laws that prohibit displays of lack of respect for a religion or other belief systems, including blasphemy laws, are incompatible with the ICCPR. When it comes to defamation law, the UNHRC states that any law be crafted with care to ensure it does not stifle freedom of expression. The laws should allow for the defense of truth and should not be applied to other expressions that are not subject to verification. Likewise, the UNHRC has stated that “laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the ICCPR imposes on States parties to respect for the right to freedom of opinion and expression.” Criminal defamation law has been widely criticized by UN Special Rapporteurs on Free Expression for hindering free expression. Yet under this new law, any speech that violates Indonesian law is deemed prohibited.

In addition, the law appears to deputize website operators to spy on their users and block any such content.

MR5 also obliges Private ESOs (except cloud providers) to ensure that their service, websites or platforms do not contain and do not facilitate the dissemination of such prohibited information or documents. Private ESOs are then required to ensure that their system does not carry prohibited content or information, which will in practice require a general monitoring obligation, and the adoption of content filters. Article 9 (6) imposes disproportionate sanctions, including a general blocking of systems for those who fail to ensure there is no prohibited content and information in their systems.

It will not be surprising to learn of stories like the first one above concerning a Malaysian publication to happen in Indonesia under this law as well.

This is one reason why Section 230 is so important to free speech. But letting the websites themselves determine what content they're comfortable with hosting, rather than threatening to fine them out of existence if any "bad" content gets through, it means that there are places for a wide variety of content online. What Malaysia has already done, and what Indonesia is doing now, is a way to truly censor critics of the government, and to make sure that they have no corner of the internet to speak out against government corruption.

Filed Under: comments, free press, free speech, indonesia, intermediary liability, malaysia, section 230

Twitter & India Still Arguing Over Whether Or Not Twitter Accounts Supporting Farmer Protests Need To Be Removed

from the mass-censorship dept

Last week we wrote about the Indian government threatening to jail Twitter employees after the company reinstated a long list of accounts that the government demanded be blocked (Twitter blocked them for a brief period of time, before reinstating them). The accounts included some Indian celebrities and journalists, who were talking about the headline news regarding farmer protests. The Mohdi government has proven to be incredibly thin-skinned about negative coverage, and despite Indian protections for free expression, was demanding out-and-out censorship of these accounts. The threats to lock up Twitter employees put the company in an impossible position -- and it has now agreed to geoblock (but not shut down) some accounts, but not journalists, activists and politicians.

The company implies, strongly, that the demands from the Indian government deliberately mixed actual incendiary/dangerous content with mere political critics of the Mohdi administration -- and makes it clear that it's willing to take action on "harmful content" or accounts that legitimately violate Twitter's rules. But that it will not agree to do so for those whose speech it believes is protected under Indian freedom of expression principles:

• We took steps to reduce the visibility of the hashtags containing harmful content, which included prohibiting them from trending on Twitter and appearing as recommended search terms.
• We took a range of enforcement actions — including permanent suspension in certain cases — against more than 500 accounts escalated across all MeitY orders for clear violations of Twitter’s Rules.
• Separately, today, we have withheld a portion of the accounts identified in the blocking orders under our Country Withheld Content policy within India only. These accounts continue to be available outside of India. Because we do not believe that the actions we have been directed to take are consistent with Indian law, and, in keeping with our principles of defending protected speech and freedom of expression, we have not taken any action on accounts that consist of news media entities, journalists, activists, and politicians. To do so, we believe, would violate their fundamental right to free expression under Indian law. We informed MeitY of our enforcement actions today, February 10, 2021. We will continue to maintain dialogue with the Indian government and respectfully engage with them.

Later that day, after Twitter made this announcement, the Ministry of Electronics and Information Technology (MeitY) set up a call with Twitter officials and released an incredibly lame press release, effectively saying "we support freedom of expression, but not when protesters say stuff we don't like."

Secretary told the Twitter representatives that in India, we value freedom and we value criticism because it is part of our democracy. India has a robust mechanism for protection of freedom of speech and expression that is very elaborately explained as Fundamental Rights under Article 19 (1) of the Constitution of India. But freedom of expression is not absolute and it is subject to reasonable restrictions as mentioned in Article 19 (2) of the Constitution of India. Various judgments of the Supreme Court have also upheld this from time to time....

[....]

Secretary took up the issue of using a hashtag on ‘farmer genocide’ with Twitter executives and expressed strong displeasure on the way Twitter acted after an emergency order was issued to remove this hashtag and content related to that. Spreading misinformation using an incendiary and baseless hashtag referring to ‘farmer genocide’ at a time when such irresponsible content can provoke and inflame the situation is neither journalistic freedom nor freedom of expression as envisaged under Article 19 of the Constitution of India. Despite the attention of Twitter being drawn to such content by the Government through a lawful process, the platform allowed the content with this hashtag to continue, which was extremely unfortunate.

Perhaps not surprisingly, the MeitY tries to insist that farmers protesting are somehow the equivalent of Trumpist insurrectionists storming the Capitol:

Secretary reminded Twitter about the action taken by Twitter during the Capitol Hill episode in the USA and compared that with the disturbance in Red Fort in India and its aftermath. He expressed dissatisfaction over Twitter’s differential treatment in the two incidents. A deep sense of disappointment at seeing Twitter side not with ‘freedom of expression’ but rather with those who seek to abuse such freedom and provoke disturbance to public order, was conveyed to the Twitter representative.

Of course, this seems incredibly misleading. Remember, Twitter did remove content that actually advocated for violence, and diminished the reach of certain other accounts. The ones it left up were reporters, activists and politicians.

Bizarrely, most of the reporting on this is presenting it as if Twitter "caved" to India's demands. But that does not appear to be what happened at all. Yes, Twitter did block or limit some accounts, but clearly chose to leave up many more. Earlier reports suggested the government demanded 1,100 accounts, but Twitter only limited 500. Now, there are reasons to be concerned when a government demands (and gets) the removal of any accounts, but it seems clear that Twitter is not just immediately complying with all such demands, and is pushing back in more than half of those accounts -- which is why the MeitY apparently is still quite angry about all of this.

Still, for American politicians looking to push incredibly short-sighted bills that will put more pressure on websites to remove accounts, just look at how such things will (1) be abused and (2) used by foreign governments to justify and defend outright censorship.

Filed Under: censorship, content moderation, farm protests, free speech, india, threats
Companies: twitter

Indian Government Threatens To Jail Twitter Employees For Restoring Accounts The Government Wants Blocked

from the watch-out-what-you-ask-for dept

We keep pointing out to people the very slippery slope that happens when we say it's okay for the government to tell websites how they have to moderate. And what's happening in India is a very important case study. As you're hopefully aware, there have been ongoing farmer protests in India, as farmers are quite upset about regulatory changes that they fear will destroy their businesses. The protests have been going on for weeks, but things have recently escalated to include some violence.

Prime Minister Narendra Mohdi is responding to all of this in a similar fashion to what he's done before: by cracking down on free speech and going after his critics. It started with full internet blackouts in places where the protesters were, with the government claiming it was necessary to cut off the internet to "maintain public safety" (yeah, right). Then, the government demanded that Twitter block the accounts of various journalists, publications, and celebrities who have been critical of Mohdi. Twitter complied, but after widespread criticism, it turned those accounts back on, apparently telling the Indian government that the tweets were protected free speech and newsworthy.

One of the accounts that had been taken down was the Caravan, a small but influential investigative journalism outfit that is widely read among politicians. A writer for Caravan, Vidya Krishnan, has a chilling account in The Atlantic about how this crackdown represents "the end of the Indian Idea." It's well worth reading. It notes that beyond just having the Twitter account shut down, the Mohdi government has arrested a Caravan writer and begun an investigation of its editors.

These latest attacks, part of a pattern of legal cases, personal threats, and intimidation against news outlets and individual journalists, make certain what was becoming evident: The freedom of the press, a constitutional right, is endangered in Modi’s India. The brazen use of social-media networks to censor journalists, the use of the police and courts to silence them, and, more fundamentally, the belief that those who report on protests are somehow undermining the state illustrate how much has changed in India, and how far the country has strayed from its founding ideals.

On Tuesday, the situation became an even more dangerous attack on free speech. It appears that Mohdi's administration is not at all happy with Twitter's decision to push back and re-enable the accounts it demanded blocked. It is now threatening Twitter employees with jailtime and fines for the decision.

On Tuesday, the IT ministry sent a notice to Twitter, ordering it to block the accounts once again. It also threatened people who work at Twitter's Indian arm with legal consequences, which could include a fine or a jail term of up to seven years.

“This is really problematic,” said Nikhil Pahwa, editor of MediaNama, a technology policy website, and an internet activist. “I don’t see why the government of India should wade into this territory of trying to censor tweets when they have much bigger problems to deal with.”

When we point out situations like this, in which the government would abuse such power, we often have people say that we're being ridiculous and such power wouldn't be abused in the US (if it was somehow even deemed allowed under the 1st Amendment). But as that Atlantic article points out, India has freedom of expression in its Constitution as well.

And even if you believe in American exceptionalism (which you probably shouldn't) and that it would be okay if the law were changed in the US, but not elsewhere, just note that countries like India (and many others) would use such a law in the US as an excuse for why their own crackdowns on free expression are in accordance with US norms.

And, of course, this puts Twitter in a somewhat impossible spot. If it does what everyone knows is the right thing morally and ethically, and refuses to suspend these accounts, it faces a difficult future in the country. Its own employees may be thrown in jail and fined. India has already been not just blocking the internet, but many Chinese apps such as TikTok. I would not put it past the Mohdi government to declare a block on Twitter. Of course, if the company caves in and takes the content back down, then it raises significant moral questions about how it may be supporting the crackdown on free speech, a free press, and on protesters in India.

It is easy to argue that Twitter should continue to take this stand and do the morally right thing, but it's much easier to do it as a nobody typing words on a computer screen than as someone actually making the very real call which could have widespread consequences for many, many people.

Filed Under: farm protests, free press, free speech, india, narendra mohdi
Companies: twitter

Biggest MAGA Conference Threatens Politico With Bogus Lawsuit For Reporting On Conference Troubles

from the that's-not-how-any-of-this-works dept

CPAC, the "Conservative Political Action Conference" put on each year by Matt Schlapp's American Conservative Union (ACU), used to be the kind of gathering where Republicans would go to get their yearly talking points fed to them. Over the past few years, it has become increasingly tied at the hip with the Trumpists, as they took over the Republican party, threw out anything even remotely resembling principles, and just started acting like "making the libs cry" was a political platform. With the Republicans now losing both the White House and both houses of Congress, as well as some concerns about how some leading members of the Republican Party (looking at you Ted Cruz and Josh Hawley) were seen inspiring insurrectionists to storm the Capitol and try to overthrow an election, it seems like many people and organizations who would normally attend or sponsor CPAC (justifying it with the old "gotta work with both sides" nonsense) are deciding to stay away.

Politico has a pretty thorough story on the mess that includes this silly bit of nonsense:

ACU Chair Matt Schlapp said he is convinced this year’s conference will be no different from past years. “CPAC is going great,” he told POLITICO on Tuesday, before then saying that his quote needed to be attributed without his name.

That's not how this works, of course. You don't get to retroactively put conditions on a quote like that, and it's good that Politico didn't let him get away with it.

But why is this a Techdirt story in the first place? Well, because when Politico asked ACU some more questions, ACU's lawyer threatened to sue Politico for "tortious interference with business relationships." And that sort of censorial thuggery and threats of a SLAPP suit are just the kind of content we cover at Techdirt:

Schlapp did not address questions about why some sponsors were not continuing their CPAC sponsorship. But after those questions were posed and additional questions were sent to CPAC sponsors — including whether the Jan. 6 Capitol riot impacted their thinking about sponsoring again this year — ACU general counsel David Safavian accused POLITICO of “tortious interference with business relationships” and attempting “to ‘cancel’ both CPAC and the American Conservative Union itself.”

The full letter that Safavian sent to Politico is quite stunning.

We understand that Politico reporters are calling sponsors of our national conference (CPAC) and making claims about both our Chairman and our conference that are contrary to the facts. We know this because those very same potential sponsors have immediately contacted us. In pushing a misleading narrative to our supporters using corporate resources, Politico is attempting to chill sponsorship of CPAC and harm the American Conservative Union.

Nah, dude. They're reporting. It's kind of a key part of the the Constitution you pretend to love. The 1st Amendment protects the press. And that's even when the press asks uncomfortable questions to you or your business partners. That's not "attempting to chill sponsorship." It's just doing some basic beat reporting on the topic.

This effort amounts to tortious interference with business relationships. And whether your realize it or not, you are demonstrating to our sponsors and supporters your political bias. Fortunately, most see this effort for what it is: "fake news."

So, um, if your sponsors don't believe it, then there's no interference with business relationships and no damage. Also, again, basic reporting, such as asking questions is not tortious interference. Never has been. Never will be. What you are doing here with threats to sue, however, certainly raises some 1st Amendment questions. You're implying that you can use the power of the state (via the courts) to silence the press.

Our Founding Fathers understood that the press has a role to play in our democracy. As such, the Framers accorded the news media with protections in the First Amendment. However, Politico's continued campaign against the American Conservative Union crosses the line from protect speech to political activism.

Where did you get your law degree again? Can you get a refund? Even if it were true that this was political activism (and, again, it is not), political activism is... also protected under the 1st Amendment. You should ask Fox News, NewsMax and OANN about those protections. Because, boy, do they ever need them.

Although the American Conservative Union would rather find a solution that results in "accurate, nonpartisan" reporting again, we fully intend to explore our legal rights to hold Politico fully accountable for what we see as tortious conduct.

Explore away. Any sane lawyer would tell you that not only do you not have any case, depending on where you bring such a lawsuit, you'd probably end up paying Politco's legal fees. You're thuggishly trying to intimidate Politco from reporting on an obvious topic of public interest. Thankfully, it looks like Politico is not easily bullied, but thanks for the reminder that we need stronger anti-SLAPP laws in every state, and a strong federal anti-SLAPP law as well.

Filed Under: 1st amendment, cpac, david safavian, free speech, journalism, matt schlapp, slapp, threats, tortious interference
Companies: acu, american conservative union, politico

EFF Tells Louisiana Court Satire Is Still Protected Speech Even If The Government Doesn't Get The Joke

from the an-inability-to-get-a-joke-doesn't-make-it-any-less-funny dept

Last summer, as anti-police brutality protests were in full swing, a Lafayette man posted an obviously bogus Antifa call to action on his "cajUUn Memes" Facebook page. The announcement called for "cajun comrades" to rise up and engage in a takeover of the River Ranch neighborhood.

Anyone with half a brain reading the post would have known it was a joke. It contained references to marijuana (the group was to meet at 4:20 pm) and asked that only "card carrying members" of Antifa show up. There was also the line: "Arms optional. Legs encouraged."

For some reason, neither the mayor nor the local police department got the joke. The mayor issued an official statement about the city's "zero-tolerance policy for threats to life and property" and a police spokesperson said the PD would be monitoring the event despite there being "no credible evidence" the planned takeover of River Ranch would take place.

The day came and went without any Antifa uprising taking place. That should have been the end of it. It wasn't. Two months later, the Lafayette Parish government sued John Merrifield, the man behind the joke post.

The lawsuit, filed in the 15th Judicial District in Lafayette, alleges John Merrifield cost the city-parish government money when he created two fake Facebook events that said ANTIFA would show up in the city's high-end River Ranch community and the Acadiana Mall.

The lawsuit seeks an unspecified amount of damages of less than $75,000.

"I think he should bear the brunt of some of the costs, if not all of the costs, that his actions cost the taxpayers," Mayor-President Josh Guillory said on his Thursday morning radio show.

Obviously a ridiculous take on what happened. Some monitoring by the PD occurred and Mayor Guillory got suckered into issuing a statement decrying a bogus Facebook event that was quite obviously a joke. According to the Mayor, some overtime money was spent. But that should be on him and the police department. There was no credible threat according to the PD itself, so any extra expenditures were clearly unjustified.

Merrifield's response to the lawsuit was less than contrite.

"Fool you once, shame on me. Fool you twice, shame on you," he said. "I’m not going to apologize to the citizens of Lafayette who were gullible enough to fall for a satire event created by a comedy meme page run by a satirist and comedian twice."

So, the parish took the man to court. And, you would assume, that would have been the end of it once a judge had a chance to review the government's ridiculous claims. But, no, this is Louisiana, where laws are weird and law enforcement easily duped.

A pair of fake Antifa rally event pages posted on Facebook by comedian John Merrifield are not protected by the First Amendment, Judge Ed Broussard of the 15th Judicial District Court in Lafayette ruled Monday. He allowed the lawsuit for damages, filed in September by Lafayette Consolidated Government, to proceed.

[...]

Broussard said Merrifield's "First Amendment right was not applicable" to the events because they "imply illegal activity or violence," referencing a state law that prohibits false statements that prompt an emergency response, which Adley argued the posts violated.

This insane ruling is being appealed. And now Merrifield has the EFF on his side. An amicus brief [PDF] filed by the EFF points out the obvious: speech doesn't become less protected just because the government didn't get the joke.

Fake Facebook events have been a part of online discourse ever since Facebook rolled out this feature. Faux events have placed mega-celebrities at mundane locations (Drake performing live at the Cheesecake Factory; Third Eye Blind performing at Lenscrafters).

The fake events also tend to pop up in response to newsworthy events.

[P]rank events have been used in a variety of situations, such as to lighten the stress and tension that accompanies an approaching natural disaster. Hurricane Florence in 2018, spawned several such satirical events. A musical instrument store in Cary, North Carolina "hosted" a pretend "Blow Your Saxophone at Hurricane Florence" event on September 18, 2018. Another user created a "Tell Hurricane Florence to Stop" event, scheduled for the "Atlantic Ocean." There were also events to "Boycott Hurricane Florence," "Take Hurricane Florence and PUSH it Somewhere ELSE!," "Bark at Hurricane Florence So It Will Go Away," "Yell 'Fake News' At Hurricane Florence," and, combining social media activities, "Angry Tweet at Hurricane Florence."

While some parody and satire may be more easily identified, failing to comprehend something is satirical is a failure of the reader, not legitimate subject matter for a lawsuit.

Merrifield's speech is clearly protected, says the EFF. And the state judge who ruled otherwise is wrong.

Although there are situations in which facetious speech may be actionable, it cannot support a legal claim that requires an affirmative intent to reach a harmful result. Under the First Amendment,"an actual subjective intent to produce future criminal consequences is required to transform 'protected' into 'unprotected' and legitimately proscribable speech." City of Baton Rouge v. Ross, 654 So.2d 1311, 1337 (1995). As this Court has held, speech is not incitement unless it was "directed or intended toward the goal of producing imminent lawless conduct," and does not extend to that speech which unintentionally inspires others to such imminent lawlessness. Byers v. Edmonson, 826 So. 2d 551, 555-56 (La. Ct. App. 2002). Like the copycat cases addressed in Byers, facetious speech does not support any permissible inference that the speaker intended to assist criminal conduct.

Anyone who legitimately thought a call for Cajun, card-carrying, Antifa members to rise up and storm an exclusive neighborhood was a credible threat probably works for the Lafayette Parish government. The posting wasn't exactly subtle. Just because the mayor didn't get the joke and the PD decided to blow payroll on "monitoring" an admittedly incredible "threat" doesn't mean they get to walk over the First Amendment in an attempt to make a jokester literally pay for the Parish's screwup.

Filed Under: 1st amendment, antifa, free speech, john merrifield, jokes, lafayette, louisiana, police brutality, satire

Fox News Needs To Accept Some Of The Blame For The Insurrection; But That Doesn't Mean We Toss Out The 1st Amendment

from the come-on-now dept

While lots of people have been blaming social media for the insurrection at the Capitol a few weeks back, fewer have recognized that Fox News is at least as much to blame, if not more. As we've covered in the past, Yochai Benkler's book, Network Propaganda, went into great detail with tons of data and evidence, to highlight how, contrary to popular belief, the crazy conspiracy theories don't really spread that quickly on social media... until after Fox News picks them up. That book also highlights how, while "left-wing" media has its own fair share of wacky conspiracy theories, they don't spread to nearly the same degree, and competition among different news venues includes attempts to debunk the wackier conspiracy theories. The same is just not there in the Fox News media-sphere.

We've actually seen this play out in interesting ways over the last few weeks. Fox News actually did, finally, break with President Trump and his pathetic attempts to deny the election results, and it simply made Trump and his cultist fanboys switch channels to even more insane merchants of garbage: OAN and Newsmax.

Somewhat infamous neocon Max Boot, who spent years championing the kinds of policies that Fox News used to support, before becoming a vocal "Never Trumper," has penned a piece in the Washington Post that rightly calls out Fox News' role in the current mess that we're in. However, he then goes much further, in suggesting legal consequences for Fox News and other Republican/Trumpist voices that played a role via things like Fox News.

Anyone who cherishes our democracy should be grateful to the management of Facebook, Twitter and other social media sites for their newfound sense of social responsibility. We should expect at least the same level of responsibility from broadcast media — and in particular from Fox News, which has the largest reach on the right.

To its credit, Fox News acknowledged that Joe Biden won. But, reports Media Matters for America, “in the two weeks after Fox News called the election for Biden, Fox News cast doubt on the results of the election at least 774 times.” According to NPR, Fox Business host Lou Dobbs said Trump’s opponents in the government were guilty of “treason” and that it would be “criminal” for Republicans to recognize Biden’s victory. Fox News host Mark Levin told viewers: “If we don’t fight on Jan. 6 on the floor of the Senate and the House — and that is the joint meeting of Congress on these electors — then we are done.”

The pro-Trump insurrectionists were listening. To take but one example, The Post reports that Ashli Babbitt, who was killed in the attack, “was an avid viewer of Fox News, praising Tucker Carlson and other far-right media personalities on the network as she derided their liberal targets.” This is dismaying but hardly surprising. As the New York Times notes, “Fox has long been the favorite channel of pro-Trump militants. The man who mailed pipe bombs to CNN in 2018 watched Fox News ‘religiously.’”

And, yes, it makes sense to call out Fox News for spreading outright falsehoods over and over again in a somewhat slavish devotion to a rabid Trumpist audience, but Boot's suggestion to have the FCC go after Fox News is hugely problematic.

But while we should expect better behavior from media executives, we shouldn’t count on it. CNN (where I’m a global affairs analyst) notes that the United Kingdom doesn’t have its own version of Fox News, because it has a government regulator that metes out hefty fines to broadcasters that violate minimal standards of impartiality and accuracy. The United States hasn’t had that since the Federal Communications Commission stopped enforcing the “fairness” doctrine in the 1980s. As president, Biden needs to reinvigorate the FCC. Or else the terrorism we saw on Jan. 6 may be only the beginning, rather than the end, of the plot against America.

This is... nonsense. And also unconstitutional. The "fairness doctrine" which Republicans have been against for ages, and which they falsely claimed net neutrality was an attempt to bring back (it was not), only covered broadcast media. And that was because broadcast media used public spectrum, and since the broadcasters received that spectrum in exchange for broadcasting content for the public good, it was ruled that the FCC could require what was, basically, a right of response.

However, such a thing has never applied to areas that the FCC has no authority over, including cable TV (and now internet TV). Nor does it apply to the internet and social media. Even if the FCC brought back the fairness doctrine, it couldn't apply it to Fox News. Any attempt to do so would almost certainly lose (and lose badly) in court as an attack on the 1st Amendment itself.

It is easy to understand why Fox News has some responsibility for what has happened in the last few years (and especially in the last few weeks). But it is a much trickier question to figure out what should be done about it. One thing that should not be done is tossing out our principles, and trampling basic rights like the 1st Amendment. I agree that Fox News is an embarrassment and harmful to American democracy in many, many ways. But forcing it to be "impartial" and compelling it to share speech with which it disagrees is no way to support democracy. Any such rule would lead to trouble down the road.

Imagine how the next version of a Trump FCC would treat the NY Times, the Washington Post, CNN and CNBC -- all of which the President referred to as "fake news" and "enemies of the people." It's not hard to see that any precedent to go after Fox News via the FCC or other legal means would not only be repeated against those other news organizations under the next Trumpist President, but it would likely be worse and even more extreme -- all while pointing back to the "precedent" set by a Biden administration doing something similar to Fox News.

We don't support democracy by throwing away our own rights.

Filed Under: 1st amendment, fairness doctrine, fcc, free speech, max boot, propaganda, responsibility
Companies: fox news

Turkish President Erdogan Is Arresting Doctors On Terrorism Charges For Exposing The Country's Actual COVID Stats

from the terrorizing-people-with-all-these-facts dept

Anyone who says anything critical of the Turkish government is a terrorist. That's been the operative theory of Recep Tayyip Erdogan, who has jailed more journalists than China and somehow managed to make a handful of governments around the world complicit in the punishment of his critics.

The hits just keep on coming. The latest roundup of "terrorists" in Turkey is COVID-related, linked to the government's attempt to bury its bad infection numbers.

Sebnem Korur Fincanci, a forensic physician, and many other doctors had long insisted there was something dodgy about Turkey’s covid-19 figures. Excess deaths across the country far surpassed officially reported deaths from the virus. Case numbers seemed suspiciously low. Vindication came at the end of November, when the government revealed it had stopped reporting asymptomatic infections months earlier. Once it resumed doing so, the case-count rocketed from about 7,000 to over 30,000 a day. (The numbers later dropped, after new lockdowns were imposed.) For her troubles Dr Fincanci, who turned 61 last year, was labelled a terrorist by none other than Turkey’s president, Recep Tayyip Erdogan. The head of the Nationalist Movement Party, the president’s coalition partner, called for the group she heads, the Turkish Medical Association, to be disbanded.

That's how the bearers of inconvenient facts are being handled in Turkey. And the government has a brand new weapon to deploy against anyone saying anything it doesn't like. A law passed late last year gives the government direct control of civil rights organizations in the country, including local branches of worldwide groups like Amnesty International. The law allows the government to remove members facing bogus terrorism charges and seize their assets. It also allows the government to handpick replacements for organization members it has jailed. If that isn't enough to silence these rights-protecting loudmouths, the government can ban the groups altogether.

All this is happening while Turkey continues to suffer from numerous violent attacks by actual terrorists. But the government has chosen to focus on multitudinous "terrorists" who do nothing more damaging than raise justifiable concerns or undercut the official narrative.

These latest arrests just add to the breathtaking number of people arrested and/or jailed by the Turkish government following a failed coup in 2016. Only a small percentage of those were participants or have engaged in actual terrorists acts. A majority of those arrested are opposition party leaders, teachers, journalists, members of civil rights groups, and dissidents. This may be making things simpler and easier for Erdogan and his acolytes. But it isn't making his country any safer. With Erdogan in charge, the population's threat matrix now includes a vengeful, thin-skinned leader.

Filed Under: covid, free speech, recep tayyip erdogan, reporting, terrorism, turkey

As Beijing Continues To Creep Into Hong Kong, Internet Censorship Begins

from the democracy-on-decline dept

As we've written about recently, Beijing's creep into Hong Kong control has turned into nearly a dash as of late. What started with July's new "national security" law that allowed the mainland to meddle in Hong Kong's affairs led to arrests of media members in July, the expulsion and arrest of pro-democracy politicians in November, and then expanded arrests of members of the public who have said the wrong things in January.

And as that mad dash to tighten its grip before a new American administration takes office continues, Beijing appears to be starting the process of censoring the internet in Hong Kong as well. In a move likely designed to make this all look reasonable, the first reports revolve around a website used to post information about Hong Kong police.

Hong Kong’s biggest mobile telecom companies appear to have severed access to a website that listed the personal information of police officers, setting off fears that the authorities may use a new national security law to adopt censorship tactics widely used in mainland China.

Users attempting to access the site, called HKChronicles, on their mobile devices first noticed the disruption on Wednesday evening, according to the site’s owner, Naomi Chan, an 18-year-old high school student. Disruption came without any warning or explanation, she said.

Now, I can write the comments from some of you here to save you the trouble: if this is a site dedicated to doxxing police officers, how is blocking it unreasonable? Your desire to write that comment is almost certainly precisely why this site is the first to have gotten the mainland censorship treatment. But that's entirely besides the point.

Instead, frame it in your mind this way: a site that had previously been accessible by Hong Kong citizens no longer is as a result of the desires of mainland China. In other words, don't get lost in the details, just realize that this is likely the start of a trend. I don't think anyone really wants to suggest in the comments that Beijing will censor this site and stop there, do they? I hope not, because nobody thinks this is anything other than the first domino to fall on its way to internet censorship.

The disruption raised the prospect that the city, long a bastion of online freedom, could begin to fall under the shadow of the tight censorship system that separates mainland Chinese internet from the rest of the online world. On Hong Kong social media, many people worried that the authorities could eventually bring the city’s overall access to the open internet to an end.

“Their talking point has been the national security law will only target a small group of people,” said Lokman Tsui, an assistant professor at the Chinese University of Hong Kong who specializes in online communication.  “In practice it hasn’t been limited to a small group of people,” Mr. Tsui said. “My concern is that internet censorship similarly won’t be limited to a small group of websites.”

It's worth noting that, for now, the method for censorship is different than the mainland's Great Firewall, but the end result is the same. I suppose the questions that remain are just how much more action Beijing is going to take prior to January 20th and what the Biden administration intends to do about any of this once it is in office.

Filed Under: censorship, china, hkchronicles, hong kong, naomi chan, protests, site blocking

Ridiculous: Yale Law Prof Argues That Because Some In Congress Want More Moderation, That Makes Twitter A State Actor

from the did-he-teach-hawley? dept

I'm beginning to see where Josh Hawley got his totally nutty ideas about the 1st Amendment. The Wall Street Journal has an utterly insane piece by Yale Law professor Jed Rubenfeld -- currently suspended due to sexual harassment claims, and who was infamously quoted telling prospective law clerks for then Judge Brett Kavanaugh, that Kavanugh "hires women with a certain look" -- and a... um... biotech executive named Vivek Ramaswami who is mad about "woke" companies, insisting (wrongly) that the big internet companies are actually part of the US government and therefore have to abide by the 1st Amendment in their content moderation practices.

Honestly, the level of thinking here is on par with your typical Breitbart commenter, not a well known (if slightly disgraced) Yale Law professor.

Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

It's not just "conventional wisdom." It's lots and lots of legal precedent and a general understanding of 1st Amendment doctrine going back ages. State action doctrine is not some brand new concept. I mean, there have been some very thoughtful academic pieces on the idea that state action doctrine should be changed to try to make it apply to social media companies. But those are academic papers suggesting how they think the law should change. They're not saying it fits under current doctrine.

Because it doesn't.

It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

So... the first sentence is correct. It's also why we've repeatedly raised concerns about lawmakers demanding specific content moderation options. But the second sentence is just laughably wrong. Nothing in Section 230 of the Communications Act induces, encourages, or promotes private persons to accomplish what is constitutionally forbidden to accomplish. The 1st Amendment protects a company's right not to associate with those it does not wish to associate with. It also protects against being compelled to host speech it disagrees with. Those are both constitutionally protected things. Section 230 does not change that.

The piece does highlight some members of Congress stupidly (and I believe, unconstitutionally) pressuring Facebook and Google to restrict "harmful content." And I agree that's wrong. But it's a massive leap towards insanity to try to spin that as saying that those vague threats from elected officials magically turns the websites themselves into arms of the state, subject to 1st Amendment restrictions placed on government. I mean, if it did, you've just handed Congress a magic tool to effectively nationalize any company: just unconstitutionally order them to do something, and voila, they're now state actors.

That's insane. That would only encourage Congress to make unconstitutional demands of companies to have those companies declared state actors. It's bonkers. I feel sorry for Yale Law students who deserve better.

Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on “hate speech.” It’s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech’s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to “a shift in the political winds.”

So... the argument here is that you want more hate speech online, and you're mad that Facebook is restricting it? Holy shit. What is wrong with you?

And, um, note what is left out in this claim about exactly when these companies "took its most aggressive steps against Mr. Trump." It's not just about the fact that Democrats were poised to take control of the Executive and Legislative branches, but because Trump had just inspired a fucking riot at the Capitol building in an effort to overturn a free and fair election and reports were coming out that he was happy about what happened, worrying many that he would encourage yet more attacks in the days leading up to the Biden inauguration.

Seems like kind of an important thing to include, no? There's no indication that the Trump bans were about politics at all. There is every indication they were about preventing an armed insurrection and possible civil war. But Rubenfeld and Ramaswamy literally ignore all of that and insist that it's some sort of ideological or political issue... and stretch that to argue that these companies are arms of the state. A state that is still controlled by Donald Trump.

I mean, this is embarrassing.

For more than half a century courts have held that governmental threats can turn private conduct into state action. In Bantam Books v. Sullivan (1963), the Supreme Court found a First Amendment violation when a private bookseller stopped selling works state officials deemed “objectionable” after they sent him a veiled threat of prosecution. In Carlin Communications v. Mountain States Telephone & Telegraph Co. (1987), the Ninth U.S. Circuit Court of Appeals found state action when an official induced a telephone company to stop carrying offensive content, again by threat of prosecution.

As the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983), the test is whether “comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” Mr. Richmond’s comments, along with many others, easily meet that test. Notably, the Ninth Circuit held it didn’t matter whether the threats were the “real motivating force” behind the private party’s conduct; state action exists even if he “would have acted as he did independently.”

Again, this is getting the facts all mixed up. All of these cases are important ones for why the government cannot force companies into moderating the way it sees best. It's why nearly all proposals to modify Section 230 are unconstitutional. But... those all involved cases where officials made specific demands that a company then followed through on -- and then the actions are really seen as government actions. But, here, there was no government official demanding that Twitter or Facebook block Trump. Trump is the President.

I agree that there might be an argument that elected officials who make specific moderation demands could be violating 1st Amendment rights of speakers (and of the companies themselves!), but to argue that vague statements by elected officials to be better about "taking responsibility" turning all moderation decisions into state action is galaxy-brain nonsense.

The piece does at least note that repealing Section 230 is a bad idea, but then goes off the rails immediately:

Republicans including Mr. Trump have called for Section 230’s repeal. That misses the point: The damage has already been done. Facebook and Twitter probably wouldn’t have become behemoths without Section 230, but repealing the statute now may simply further empower those companies, which are better able than smaller competitors to withstand liability. The right answer is for courts to recognize what lawmakers did: suck the air out of the Constitution by dispatching big tech to do what they can’t. Now it’s up to judges to fill the vacuum, with sound legal precedents in hand.

Uh, sure. Let's have judges produce precedent -- a la Backpage v. Dart -- that says that elected officials cannot threaten or try to force companies to do something unconstitutional. But, that should be on the public officials, not on companies, and certainly not when these actions were not taken at the behest of elected officials, but in order to try to stop an armed insurrection (which, again, the authors never bother to mention other than an oblique reference towards the end of the piece about "the breach of the Capitol").

The article also says that these companies now might try to block Joe Biden because they don't like his support of antitrust action against them. And...um... does anyone believe that? That's insane (beyond the fact that there are no antitrust suits against Twitter, which isn't even that big in the first place). But even if they did do that, it would immediately backfire. I mean, it would not just be ridiculous, laughable, and a total PR disaster, but it would play right into the hands of those suing the companies for antitrust.

I'm not sure how difficult it is for Rubenfeld and Ramawamy to get this through their skulls, but the bans last week were not because of a policy disagreement with the President. No one's blocking anyone for their "conservative viewpoints." It was because he had just inspired a violent mob to attack the Capitol while Congress was in session and trying to officially count the Electoral College votes and five people died. That violates every possible terms of service agreement ever written.

There’s more at stake than free speech. Suppression of dissent breeds terror. The answer to last week’s horror should be to open more channels of dialogue, not to close them off. If disaffected Americans no longer have an outlet to be heard, the siege of Capitol Hill will look like a friendly parley compared with what’s to come.

There are tons of outlets for "disaffected Americans." They have many outlets to be heard. What they don't have is a right to demand that any company host their speech when they are spreading blatant disinformation and violent rhetoric, including calling on people to literally murder public officials.

Ordinary Americans understand the First Amendment better than the elites do. Users who say Facebook, Twitter and Google are violating their constitutional rights are right. Aggrieved plaintiffs should sue these companies now to protect the voice of every American—and our constitutional democracy.

If they do, they will lose, and they will lose badly. It will be an embarrassing waste of money. One hopes that anyone thinking of filing such a lawsuit discusses it with a lawyer trained by actual legal experts, and not taught by Jed Rubenfeld.

Filed Under: 1st amendment, congress, content moderation, jed rubenfeld, state action doctrine, state actor, vivek ramaswami
Companies: facebook, google, twitter