Dominion Voting Systems Files Defamation Lawsuit Against Former Trump Lawyer, Sidney Powell

from the kraken-released,-presumed-searching-for-competent-representation dept

We write a lot about defamation suits here at Techdirt. Most of what we cover are baseless lawsuits -- lawsuits featuring powerful people "punching down" in hopes of silencing critics.

But this case is on a more equitable level. As the election results rolled in last November, the Trump Administration maintained the election had been "stolen." The fantasies of the lame duck were encouraged and enabled by lawyers who should have known better. This includes Rudy Giuliani -- self-proclaimed 9/11 hero and all-around evidence that satire is dead.

One of Trump's lawyers went on the warpath. Sidney Powell -- one-time legal counsel to the President -- sued as early and often as possible, hoping to get key election results thrown out. The evidence the so-called "Kraken" brought with her wasn't really evidence of anything. It made "hearsay and conjecture" seem like a solid basis for a lawsuit. What Powell brought with her was a combination of sovereign citizen fanfic and anthropomorphized YouTube videos.

Trump cut ties with Powell -- perhaps considering her too far out there for even his OAN-enabled fever dreams. She went on without him, ensuring taxpayers would keep paying to defend the Republic against wild fantasies of widespread voter fraud and election machinery interference.

Powell targeted Dominion Voting Systems early and often, apparently only because they were deployed in Georgia -- a state Trump lost that he did not expect to lose. Georgia has a problem with election security, but for years, elected officials have chosen to attack Democrats and bury negative info rather than address these problems.

Powell's lawsuits aren't going to make voting in Georgia any more secure. But they may carve some holes in Powell's bank accounts. Dominion Voting Systems isn't happy with Powell's assertions about its products. After weeks of being publicly reamed by Trump and his litigious supporters, Dominion is fighting back.

Taking an action long promised to be “imminent,” Dominion Voting Systems has sued right-wing lawyer Sidney Powell. The company seeks damages to the tune of more than $1.3 billion for “wild” and “demonstrably false” allegations against the company that Powell made through “conspiracy theorists, con artists, armchair ‘experts,’ and anonymous sources.”

“During a Washington, D.C. press conference, a Georgia political rally, and a media blitz, Powell falsely claimed that Dominion had rigged the election, that Dominion was created in Venezuela to rig elections for Hugo Chávez, and that Dominion bribed Georgia officials for a no-bid contract,” the 124-page complaint states.

Dominion is a public entity. That raises the bar for successfully alleging defamation. Sidney Powell is a public figure as well, which evens things out a bit. And some of her accusations were made outside of a courtroom, where immunity for statements made during litigation doesn't apply. Powell was given a chance to retract her allegedly defamatory statements but refused to do so. And now it's a lawsuit [PDF].

As Dominion points out, many of the "arguments" made in court were aired publicly by Powell during press conferences and political rallies. There's no immunity for these accusations -- ones Dominion says have no basis in reality.

Powell’s wild accusations are demonstrably false. Far from being created in Venezuela to rig elections for a now-deceased Venezuelan dictator, Dominion was founded in Toronto for the purpose of creating a fully auditable paper-based vote system that would empower people with disabilities to vote independently on verifiable paper ballots. As it grew, Dominion developed technology to solve many of the technical and voter intent issues that came to light as a result of the 2000 Presidential Election. Its systems are certified under standards promulgated by the U.S. Election Assistance Commission (“EAC”), reviewed and tested by independent testing laboratories accredited by the EAC, and were designed to be auditable and include a paper ballot backup to verify results. Since its founding, Dominion has been chosen by thousands of election officials throughout the United States to provide the technology to effectively administer transparent and fully auditable elections.

When you don't have the facts, you pound the table. Powell's fists must be pretty raw.

When respected Georgia Republicans disproved Powell’s false accusations by announcing that Georgia’s paper ballot recount had verified the accuracy of Dominion’s vote counts, Powell sought to discredit them by falsely accusing Dominion of paying kickbacks to them and their families in return for a no-bid contract. The only “evidence” Powell ever put forward to support that false accusation was a doctored certificate from the Georgia Secretary of State. Powell has insinuated that the fact that the certificate is undated is suspicious. In reality, the authentic certificate is dated and is publicly available on the Georgia Secretary of State’s website…

If you don't want your fists bruised and your ass sued, maybe try to secure some real evidence before holding press conferences and filing lawsuits.

Powell’s “evidence” included declarations from a motley crew of conspiracy theorists, con artists, armchair “experts,” and anonymous sources who were judicially determined to be “wholly unreliable.”

And don't say stuff like this in public:

Powell deliberately lied about having a video of Dominion’s founder saying he could “change a million votes, no problem at all.” Powell has never produced that recording because it does not exist.

Sidney Powell will once again be asked to explain herself by federal court judges. But this time, she'll be doing it as a defendant. A smarter conspiracy theorist may have confined their baseless claims to legal filings, where they would be shielded by immunity. But the "Kraken" decided she needed to rouse the rabble periodically. And now she could be on the hook for millions of dollars in damages. (Dominion is asking for $651 million, but it seems unlikely this will be the judgment amount, even if the company wins handily.)

There are plenty of legitimate reasons to be concerned about election security and foreign interference in elections. Powell's claims, however, aren't legitimate. They're fantasies constructed by people who should never be relied on as witnesses, much less "expert" ones. Powell's decision to pander to Trump and amplify baseless allegations made by internet detritus looks like it's going to come back to hurt her.

Filed Under: 1st amendment, defamation, free speech, sidney powell, voting
Companies: dominion

Pennsylvania School District Asks Supreme Court To Allow It To Continue To Violate Students' First Amendment Rights

from the who's-being-disruptive-now dept

The Mahanoy Area School District of Pennsylvania, which currently serves 11,000 residents and 1,100 students -- wants to keep wasting local and federal tax dollars defending its decision to infringe on the free speech rights of students.

In 2019, the district was sued by "B.L.," a student whose f-bomb laden Snapchat message was reported to school officials. Using the vernacular of high school students, B.L. expressed her displeasure with things that often displeased students.

fuck school fuck softball fuck cheer fuck everything

As a result of a snitch within the cheer team's midst, B.L. was booted from the cheerleading roster and suspended by the school. But the Snapchat selfie with the f-words was taken while B.L. was off campus and after school hours. It made no difference to the school, which felt it had the right to punish B.L. for any expression regarding school activities. In support, it pointed to the "agreement" B.L. had signed when she signed up for cheerleading, forbidding the creation of any "negative information" about the school while participating in extracurricular activities.

The district court said the school went too far, extending its control of students' speech past the confines of the school campus. If the speech had proven to be disruptive to other students or the business of schooling, it may have been within its rights to punish B.L. But the facts showed the only people "disrupted" were the person reporting the Snapchat, and the cheerleading coach who decided to be offended by it. Oh, and B.L., who was (temporarily) no longer a student or a cheerleader.

The district continued to insist it was right. It took its case to the Third Circuit Court of Appeals, which pretty much said the same thing the lower court did. Then it went further, pointing out the school's inability to stay within the confines of its own extracurricular activities policies.

B.L.’s snap contained foul language and disrespected her school and team. But the rule’s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.” Id. That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large. Indeed, one of the cheerleading coaches recognized that the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.” J.A. 90. So this rule is of no help to the School District.

This punishment of B.L. violated her rights. This is indisputable, said the Third Circuit. Any other interpretation would allow schools to punish students for exercising their First Amendment rights, no matter how, when, or where they exercised them.

As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.”

The school district is unwilling to accept this. It apparently strongly believes it should be able to punish speech in whatever dislikable form it encounters. The school district is asking the Supreme Court to reverse its two federal court losses.

Its Supreme Court petition [PDF] is pretty terrible. On the upside, it's short. But it opens with a disturbing assertion that makes it clear far too many schools have far too little respect for the rights of their students. Referring to its two consecutive defeats in court, the school says this:

Commentators called the decision a “bombshell”; respondents’ counsel dubbed it a “landmark.” For amici representing thousands of school districts and 1.7 million teachers, the decision is a disaster.

A "disaster." That's what the district calls its inability to punish students for stating they dislike school/school activities while speaking to friends at off-campus locations. According to its brief, the school thinks its two federal courts losses will somehow prevent schools from addressing serious harms caused by off-campus speech.

Relying on Tinker, several States within the Third Circuit passed laws requiring schools to address off-campus cyberbullying or harassment with a close nexus to the school. Absent this Court’s intervention, schools within the Third Circuit cannot protect student welfare without risking damages suits.

All I can say to this is "good." This will require schools to take more care when addressing cyberbullying and harassment. And if it is occurring off-campus, it's probably nothing the school should be expected to take responsibility for, even if it's nominally charged with ensuring student safety. There are holes in the coverage, to be sure. But not everything that affects students is actually a school's problem.

And the opening paragraph further undercuts its case. The district believes there's a circuit split that must be resolved by the nation's top court. But there's a key element missing from this case -- an element the school states but can't actually show has any bearing on the case at hand.

In five circuits and under the law of the Pennsylvania Supreme Court, schools can discipline substantially disruptive off-campus speech that is closely linked to the school environment. But the decision below disempowered 5,800 schools within the Third Circuit from addressing this same speech.

There was nothing "substantially disruptive" about B.L.'s speech. The biggest disruption was felt by B.L., who was kicked off the cheer team and suspended. Otherwise, school operations and the district's student body remained unaffected.

The district also mischaracterizes the Third Circuit's ruling to advance its own narrative: that the speech was disrupted, despite all evidence to the contrary:

Respondents seek to erode this mountain into a molehill by contending (at i, 14-17) that B.L.’s speech was not substantially disruptive and thus not subject to discipline even had she spoken out at school. But the Third Circuit rejected that argument, reserving the substantial-disruption question after acknowledging that B.L.’s posts undisputedly upended the cheerleading program.

The Court didn't do anything of the sort. The school only asserted that the Snapchat in question was "likely" to "disrupt" only the cheerleading program. There's a lot of ground between disrupting the regular education process and "upending" one extracurricular activity. Without more to deal with, the Third Circuit decided there wasn't enough on the record to justify setting precedent on this issue.

First, our choice to sidestep the issue in J.S. adhered to the maxim that, where possible, we should avoid difficult constitutional questions in favor of simpler resolutions. There, it was sensible to avoid the issue because we could resolve the case by applying well-settled precedent addressing the substantial disruption standard in the context of the school environment. But that is not the case here. The School District’s defense of its decision to punish B.L. focuses not on disruption of the school environment at large, but on disruption in the extracurricular context—specifically, the cheerleading program B.L. decried in her snap.

The only part of the Third Circuit's decision that acknowledged any sort of "substantial disruption" was the concurring opinion, which said finding in B.L.'s favor might pose disciplinary difficulties in other situations. What the concurrence didn't say it that it found B.L.'s Snapchat "substantially disruptive."

For good measure, the district conjures COVID to justify further limiting the Constitutional rights of its ~1,100 students… but with the Supreme Court, which could limit the rights of millions of students all at once.

[T]he question presented recurs constantly and has become even more urgent as COVID-19 has forced schools to operate online. Only this Court can resolve this threshold First Amendment question bedeviling the Nation’s nearly 100,000 public schools.

Chances are, this court won't. Most of the nation's 100,000 schools aren't "bedeviled" by this case emanating from one small district in Pennsylvania -- one that deals with harsh punishment being handed down over speech that occurred off-campus and after school hours. There's nothing in this very brief Brief that justifies the nation's top court disturbing a narrow ruling that found a school harmed the Constitutional rights of one student by overreacting to some online swearing. Unfortunately, this means Pennsylvania residents are still paying the district to argue against respecting their rights. Hopefully, this will be dumped as soon as SCOTUS has a chance to lay its eyes on it.

Filed Under: cheerleading, free speech, mahanoy area school district, pennsylvania, scotus

Cass Sunstein's No Good, Horrible, Very Bad Idea For Using Defamation To Fight 'Fake News'

from the dude,-no dept

Cass Sunstein is a famous legal scholar, who is probably most well known for his book "Nudge" about design decisions that governments can take to influence better behavior. The last time we wrote about him was back in 2014 when he decided to write a Bloomberg column attacking free speech, by saying that free speech hurts public civility and democratic self-government. Specifically, he was attacking one of the most important 1st Amendment cases the Supreme Court has ever heard, NY Times v. Sullivan, which cemented very important 1st Amendment protections in defamation cases -- such as establishing the "actual malice" standard to make sure that defamation law was compatible with the 1st Amendment.

Well, apparently things haven't changed that much in six years. Sunstein is back, again in the pages of Bloomberg, to again attack NYT v. Sullivan, and to make a very, very poorly argued case for using defamation law to combat "fake news." Before we get into the problems of the article, let's just note that focusing on "fake news" in general remains a really dangerous proposition. Remember, the term originally became super popular with Hillary Clinton supporters in the runup to the 2016 election, to highlight some completely made up stories in support of Donald Trump. Of course, after the election, Trump and the Trumpist community turned the "fake news" cry right around and made it a rallying cry for any accurate news reports they didn't like.

So even Sunstein's basic framing here, that we need to attack fake news with the law, should worry people. It's handing a tool to people who will twist it and abuse it to stifle accurate reporting they don't like.

Misinformation and fake news are now threatening public health and endangering democracy itself. What might help contain the problem? Part of the answer lies in a very old remedy: the law of defamation.

While much of his article talks about possible defamation cases from two voting technology firms, Dominion and Smartmatic, who might have legitimate defamation claims (though it's hardly a slam dunk) against some of the people and media organizations presenting insane conspiracy theories about their technology, Sunstein's embrace of defamation law is both confused and dangerous.

Sunstein discusses the "actual malice" standard in NYT v. Sullivan, and starts out by making the correct point that most people misunderstand "actual malice" to mean the dictionary definition, rather than the Supreme Court's definition. In truth, "actual malice" has nothing to do with "malice" (actual or not). For something to be actual malice it needs to be a statement that the speaker knew was false, or "with reckless disregard of whether it was false or not." Unfortunately, this part is often misunderstood as well. "Reckless disregard" also has a legal definition that does not match the dictionary definitions of those words. And while Sunstein was correct about the "actual malice" part meaning something different than people think it does, he gets the "reckless disregard" part wrong.

Unfortunately, that term is misleading. The court’s standard did not require “malice” at all. New York Times v. Sullivan rules that a speaker can be held liable for defamation if (a) she knew that what she was saying was false or (b) she acted with “reckless indifference” to the question of truth or falsity. Even if a speaker sincerely thinks she is telling the truth, she is unprotected if it should have been obvious that she wasn’t — if, for example, all of the reliable evidence suggested she was speaking falsely.

So, that's half right, but the closing part is misleading. The standard for "reckless disregard" is not whether or not "it should have been obvious." The legal standard for "reckless disregard" is that the person making the statement had serious doubts as to the truth of the statement, but they made it anyway. That's very different than what Sunstein says above. Indeed, he says the opposite -- that if the person "sincerely thinks she is telling the truth" then it can meet the reckless disregard standard.

This is false. In fact, this is misinformation. In an article about combatting misinformation.

I won't even get into his discussion of whether or not the two voting tech companies would be seen as public figures. But then Sunstein goes on to suggest a broad use of defamation cases to attack misinformation:

Beyond this specific situation, New York Times v. Sullivan can be used as a sword against the kind of misinformation that proliferates today. That’s deeply ironic, because the ruling was originally meant to provide a shield — giving broad protection to journalists, broadcasters and speakers of all kinds on the theory that most false statements are relatively innocent. In the court’s apparent view, “knowing falsehoods” — lies — would be pretty rare, and even recklessness would be unusual.

That was then, and this is now. For contemporary victims of misinformation, the New York Times decision can be deployed as a potent weapon not only against those who peddle lies, but also against those who are heedless of truth.

It has long been clear that in democracies that cherish freedom of speech, speakers need, and deserve, a shield. But it is increasingly clear that in democracies intent on self-preservation, victims of damaging falsehoods need, and deserve, a sword.

This is... also just misinformation itself. I fully understand the concerns about misinformation and conspiracy theories -- and the fact that they've received massive support from a wide group of people, up to and including the President of the United States. But most of it is protected by the 1st Amendment. And even as ridiculous and dangerous as some of the speech is it remains a good thing that it's protected under the 1st Amendment.

Take the standard that Sunstein suggests here and just think about how it gets deployed by Trumpists. They readily declare the NY Times, CNN, the Washington Post and others of "fake news" all the time. The Trump campaign is still suing a bunch of news organizations, and Trump himself has talked repeatedly of "opening up libel laws."

Some, likely including Sunstein, would argue that this is fine, and that courts and judges would protect against such abuses. But that completely misses both the point and the reality of how these lawsuits work. Defamation lawsuits are expensive. They involve a tremendous amount of work, and often tie up people and resources who could be working on other stuff. That's why SLAPP suits are so damn common. And Sunstein is basically saying that we need more SLAPP suits because he can't figure out a way to better educate people and get them to move away from believing in conspiracy theories. That's not a good approach, and it's not one that's legitimate under the 1st Amendment.

Filed Under: 1st amendment, actual malice, cass sunstein, defamation, disinformation, fake news, free speech, misinformation, reckless disregard

Repair Shop Owner Who Supposedly Had Hunter Biden's Laptop Sues Twitter For Defamation... Has Lawsuit Tossed The Same Day

from the about-that... dept

As basically a million people mentioned to me, on Monday, John Paul Mac Isaac, computer repair shop owner, sued Twitter for defamation. You may recall his name as the computer repair shop guy who allegedly had Hunter Biden's abandoned laptop, which later became a NY Post story. That story then became a content moderation story, as both Twitter and Facebook sought to limit the spread of the story. In Twitter's case, the company claimed that it violated the social media site's policy against linking to "hacked materials."

As we noted at the time, this Twitter policy had been in place for a while and was already controversial in how it had shut down accounts that were clearly doing journalism based on hacked documents. Twitter later changed its policy regarding hacked materials, in large part due to the controversy over this story.

When I was first pointed to the lawsuit, I assumed that like nearly all defamation lawsuits against Twitter, it was actually about posts by users (which would be clearly barred by Section 230). The lawsuit is ridiculous, but it's ridiculous in a different way. Isaac was not suing over user speech on Twitter, but over Twitter's decision to refer to that material as "hacked," which he claimed defamed his reputation, and made people think he was a hacker.

Defendant's Distribution of Hacked Materials Policy ("Hacked Materials Policy") defines a "hack" as "an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access....

The Hacked Materials Policy further defines "hacked materials" as "information obtained through a hack."

Defendant's actions and statements had the specific intent to communicate to the world that Plaintiff is a hacker.

According to Merriam-Webster, a "hacker" is "a person who illegally gains access to and sometimes tampers with information in a computer system."

The term "hacker" is widely viewed as disparaging, particularly when said about someone who owns a computer repair business.

Plaintiff is not a hacker and the information obtained from the computer does not hacked materials because Plaintiff lawfully gained access to the computer, first with the permission of its owner, BIDEN, and then, after BIDEN failed to retrieve the hard drive despite Plaintiff's requests, in accordance with the Mac Shop's abandoned property policy.

Plaintiff, as a direct result of Defendant's actions and statements, is now widely considered a hacker....

So... there's a lot to unpack here, but basically none of this makes sense. As the complaint itself notes, Twitter has a very broad definition of hacked materials, and at no point suggested that Isaac himself was a "hacker." The policy was applied to the materials, which Twitter (for good reasons) deemed to have been private material that was not meant for public consumption. Also, if your defamation complaint is focusing on a dictionary definition, you're probably already in trouble. And, to make matters worse, the complaint leaves out the other definitions of "hacker" in the Merriam-Webster definition, including the one directly above the definition they cited (they chose the 4th one), which also says a hacker can be "an expert at programming and solving problems with a computer" which seems like a positive thing for a computer repair shop owner.

But, even beyond that... the whole thrust of the lawsuit is garbage. About the only thing going for it is the fact that it's not trying to hold Twitter liable for the speech of a user. Of course, even though it is actually focused (obliquely) on Twitter's own speech, the company still might be protected by Section 230, because the speech in question was part of Twitter's efforts to moderate -- meaning that it might be a rare case where Section 230's infamous (c)(2) clause mattered. But even without Section 230, Twitter's speech here would be protected under the 1st Amendment.

Either way, for now at least, none of this matters, because the lawsuit was tossed out hours later for jurisdictional issues. For a case to be in federal court over state law issues (defamation is a state law), it has to have diversity (meaning all of the parties need to be in different states). However, here, both Isaac and Twitter are technically in Delaware (Twitter is registered as a Delaware company). Thus, no diversity, and no jurisdiction in federal court:

The Complaint alleges that Plaintiff is a resident of Delaware and that Defendant is a Delaware corporation “with an office in Dade County, Florida.”... The sole basis for subject matter jurisdiction is diversity of citizenship.... For a court to have diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “all plaintiffs must be diverse from all defendants.”... Thus, accepting the Complaint’s allegations as true, the Complaint fails to allege complete diversity. Therefore, the Court is without subject matter jurisdiction over the instant action.

It's possible that Isaac can refile in state court. Or he could try to claim diversity by arguing that Twitter is really a California based company (given that's where its headquarters are). The statement about it having offices in Florida is just... weird and unimportant. But even if refiled somehow, this case is a losing proposition and a clear SLAPP suit.

Filed Under: 1st amendment, content moderation, defamation, fact check, hunter biden, john paul mac isaac, laptop, section 230
Companies: twitter

Chinese Government Sentences Journalist To Four Years In Jail For Reporting On The Spread Of The Coronavirus

from the we-have-ways-of-making-you-(not)-talk dept

Shortly after the coronavirus started showing up everywhere uninvited, President Trump decided to amplify his China-centric trade war with a war of words, referring to the new virus as the "China virus." The Chinese state media responded by suggesting the United States was actually the source of the virus, and then everything just kind of went to hell for awhile. Both countries took turns throwing each other's journalists out -- something that made a lot of noise but didn't really accomplish anything.

With that spat behind it, China went back to doing what it does best: locking up its own citizens. This was done with more enthusiasm than usual, since the state media's attempt to control the coronavirus narrative failed spectacularly, contradicted by local reports that managed to escape the Chinese government's blockade.

The government is still rounding up journalists and locking them up for reporting on the local spread of the virus. Zhang Zhan, former lawyer and current journalist, has been incarcerated since May of this year. She's accused of "picking quarrels and stirring up trouble." The schoolground wording belies the severity of these charges, which are a convenient catch-all for journalists, dissidents, and critics of the state.

Little had been heard about Zhang's arrest (and the others that accompanied) since earlier this year. The government finally released information on the charges in mid-November. Zhang's charges -- which include accusations of spreading "false information" via the internet -- come with a recommended sentence of 4-6 years.

This isn't Zhang's first run-in with the Chinese government.

Zhang was previously detained on similar accusations by Chinese authorities in 2018, and again in 2019 for voicing support for Hong Kong activists. She was detained for more than two months and forced to undergo psychiatric assessments, CHRD said.

This one is the most severe, though. The government's previous attempts to intimidate Zhang into silence failed. Even if this latest attempt doesn't work, it will be a long time before the government has to worry about quarrels being picked or trouble stirred up by Zhang.

Zhang Zhan, a 37-year-old former lawyer and citizen journalist who was arrested in May while reporting from Wuhan, has been sentenced to four years in jail.

Zhang is one of at least a half-dozen journalists arrested for reporting on the situation in Wuhan as the virus spread earlier this year. The government won't allow competing narratives to stand. This was amply demonstrated weeks before the virus started wreaking havoc in other countries when the Chinese government arrested doctors and whistleblowers for sounding the alarm about the dangerous new illness.

Given the worldwide spread of the virus and the Chinese government's desire to distance itself from its failure to handle its own COVID problem, China should soon overtake a resurgent Turkey to reclaim the top spot on the Most Journalists Jailed chart.

Filed Under: china, citizen journalism, covid, free speech, journalism, zhang zhan

Unimpressed Judge Tosses One Of Devin Nunes' SLAPP Suits Against The Washington Post

from the begone dept

Back in March, Devin Nunes filed yet another of his many, many SLAPP suits. This one was against the Washington Post and reporter Shane Harris. As we noted at the time, the lawsuit was mostly performative, and had no real legal argument. After first being transferred to the appropriate venue, last week the federal court in DC easily tossed the case noting that Nunes failed to plead anything actually defamatory.

The Complaint contains two related counts: The first claims that Defendants defamed Plaintiff; the second claims that Defendants conspired with House Democrats to defame him.... The Post argues that both counts should be dismissed for failure to state a claim.... As explained below, the court agrees. And because Plaintiff’s proposed amendments fail to cure the Complaint’s fundamental defects, the court also denies Plaintiff’s Motion for Leave to File an Amended Complaint.

To see just how badly Nunes's claims failed, the judge even notes that Nunes and his lawyer Steven Biss tried to say that the first claim was "defamation per se," but as the court notes, that's not actually what they claimed. It's kind of stunning how frequently people assume that "defamation per se" means "obvious defamation," which often translates into "obviously that was really mean." But... that's not what it means. The specifics of defamation per se differ depending on local defamation laws, but it generally only matters for determining damages, not whether or not something is actually defamatory (or really mean). It's just that if you can show defamation per se (which is generally limited to a few categories of defamation that would be seen to obviously undermine someone's reputation) then you don't have to show damages -- rather, damages are assumed.

But, as the judge notes here (and I'll just say, it's probably not a good start when a judge starts a ruling by noting that the thing you argued was your first claim was not what you claimed it was), they didn't actually plead defamation per se:

Although Plaintiff styles the first count as “defamation per se,”... his claims are more appropriately considered defamatory implication claims. “[D]efamation by implication stems not from what is literally stated, but from what is implied.” White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). Plaintiff does not challenge the substantial truth of any statement in the Article. ... Rather, he alleges that “[t]he defamatory gist of the [Article] is that Plaintiff lied to and deceived the President of the United States[.]”... Thus, Plaintiff contests not any assertion of fact contained in the Article but, rather, the meaning conveyed by those facts

And, as we've discussed regarding similar cases in the past, this is not how defamation law works at all. And that's especially true here.

To establish defamation by implication, the plaintiff must demonstrate (1) that “a defamatory inference can reasonably be drawn” and (2) that “the particular manner or language in which the true facts are conveyed” supplies “additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference.”... Here, the Complaint alleges two defamatory implications stemming from statements in the Article, neither of which can rationally be considered reasonable or intended or endorsed.

Plaintiff first alleges that Defendants defamed him by implying that he “lied to and deceived the President of the United States” by telling the President that Shelby Pierson “had given an exclusive briefing” to Representative Adam Schiff.... The Article does not, however, say that Plaintiff told the President that Pierson had delivered an “exclusive briefing” to Representative Schiff. It reports only that “Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff.”... Plaintiff pieces that statement together with the Article’s subsequent statement that “Trump learned about Pierson’s remarks from [Plaintiff]” to allege the implication that Plaintiff lied to the President.... But such an inference is unreasonable. Even if one could plausibly read the Article as implying that Plaintiff’s communications with President Trump somehow contributed to the President’s erroneous belief, nothing in the Article suggests that Plaintiff affirmatively “lied to and deceived” the President. As the Post notes in its brief: “In the absence of any other explanation, the reasonable assumption is that there was a simple misunderstanding or miscommunication.” ... The defamatory implication Plaintiff asserts is further negated by the Post’s description of the briefing as one “offered to all members of the committee.”... That uncontested fact leaves the reader with the impression that the President’s “erroneous” understanding was the product of mistake or misunderstanding, not a falsehood uttered by Plaintiff. This view is reinforced by the Article’s description of Plaintiff as “a staunch Trump ally.”... Plaintiff points to no facts to support the inference that a “staunch ally” would deliberately deceive the President about the exclusivity of an intelligence briefing, when the fact of the briefing’s access to all members was so readily ascertainable. For these same reasons, the alleged defamatory inference cannot be considered either intended or endorsed by Defendants.

Not a good start. How about the next one?

Plaintiff’s second alleged implication fares no better. The Complaint highlights the Article’s statement that “Trump’s opinion of [Acting Director of National Intelligence Maguire] shifted . . . when he heard from a Republican ally about [Pierson’s] remarks.”... In Plaintiff’s view, that statement implies that Plaintiff sought “to ‘ruin’ Maguire’s chances of becoming the permanent intelligence chief.”... But as the Post points out, the Article explains that it was “[t]he intelligence official’s analysis and Trump’s furious response [that] ruined Maguire’s chances of becoming the permanent intelligence chief,” not Plaintiff’s characterization of Pierson’s remarks. ... As a result, any inference that Plaintiff sought to “ruin” Maguire’s chances for appointment as Director of National Intelligence is unreasonable. And assuming it were reasonable, Plaintiff provides no warrant for the idea that “the particular manner or language” of the Article’s statements supplies “additional, affirmative evidence suggesting that the [Post] intends or endorses” such an inference.

From there, the court goes even further, pointing out that even if there were some defamatory implication in the article (and again, there was not), it couldn't even come close to pleading "actual malice" standard necessary for defamation of a public figure. As is often the case in crazy SLAPP suits, rather than plead the actual points in the actual malice standard, Biss and Nunes chose to repeat performative nonsense and conspiracy theories about how mean the defendants were. The court points out that this is not how any of this works.

Instead of engaging with the Post’s arguments on actual malice, Plaintiff repeats various— largely conclusory—allegations from his Complaint. ... One set of allegations amounts to nothing more than the naked assertion that Defendants knew the statements in the Article were false.... This type of pleading, which offers no more than “labels and conclusions” and a reference to the relevant legal standard, does not satisfy Rule 8. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also id. (noting that a complaint does not suffice “if it tenders naked assertions devoid of further factual enhancement” (cleaned up)).

Another set of allegations boils down to the claim that Defendants published the Article due to animus against Plaintiff and others.... Besides the fact that these allegations are similarly conclusory, “caselaw resoundingly rejects the proposition that a motive to disparage someone is evidence of actual malice.” ...

Plaintiff also peppers his opposition brief with several stray allegations that do nothing to move the needle. First, he cites his allegation that, pre-publication, Defendants initially represented that Plaintiff and the President met at the White House on February 13, 2020, even though Defendants did not ultimately include that inaccuracy in the Article.... The court struggles to understand how a decision not to publish an inaccurate statement supports the claim that Defendants knowingly published false statements in the Article. If anything, Defendants’ attempted verification and subsequent exclusion of the inaccurate statement suggests the opposite. Next, Plaintiff contends that Defendants “abandoned all journalistic standards and integrity . . . in writing, editing, and publishing the [Article].”... Yet Plaintiff nowhere identifies the “journalistic standards and integrity” that the Post purportedly violated. He cites Gilmore v. Jones for the general proposition that a “failure to investigate or observe journalistic standards, although not determinative, is relevant to the actual malice inquiry,” ... But in Gilmore itself, the departure from journalistic standards was a failure to seek comment... the opposite of what happened here.... Finally, Plaintiff references his allegation that Defendants knew he was in Tulsa, Oklahoma, for a campaign event on February 14, 2020, the day after the classified briefing. He maintains this fact shows that he could not have possibly advised the President about the briefing. ... Although his allegation includes a specific fact that might bear on Defendants’ subjective knowledge, it does not conflict with what the Post reported in the Article. As the Post notes, “[t]he Article does not report when President Trump learned of the briefing from [Plaintiff] (or how) . . . [Plaintiff] could have conveyed the information to President Trump on a different day[.]” ... The allegation, therefore, does not support Plaintiff’s claim that the Post knew that anything it reported in the Article was false

Nunes' and Biss' "common law conspiracy" claim fares no better because, as again is so often the case in SLAPP suits, all these other claims are just attempts to claim defamation under another name.

The court then rejects Biss' attempt to file an amended complaint noting that nothing in the proposed complaint could solve any of this.

Here, the court concludes that Plaintiff’s amendments would be futile because they fail to cure the defects explained above. For one, the Amended Complaint contains no further allegations that would satisfy the pleading requirements for defamation by implication.... Moreover, the Amended Complaint does nothing to address Plaintiff’s inability to plead actual malice. Instead, it repeats the same litany of conclusory or otherwise insufficient allegations.... Plaintiff invites the court to reconsider the actual malice standard established in New York Times v. Sullivan... , but for obvious reasons, the court cannot do so, see Agostini v. Felton, 521 U.S. 203, 237 (1997) (indicating that lower courts should “leav[e] to th[e] [Supreme Court] the prerogative of overruling its own decisions”).

Of course, Nunes may appeal and waste more of the Washington Post's time and money. And he still has his other SLAPP suit against the Washington Post that was just filed last month.

It truly is impressive just how many bad SLAPP suits Devin Nunes has filed. Considering that he's repeatedly expressed his support for "free speech" and the 1st Amendment, as well as complained about "frivolous litigation," it really is worth noting that he is alone among elected officials in Congress to file so many lawsuits attacking the free speech of the media and his critics.

Filed Under: 1st amendment, actual malice, anti-slapp, defamation, defamation per se, devin nunes, free speech, shane harris, slapp, steven biss
Companies: washington post

NY Gov. Andrew Cuomo Signs Law Banning Sale Of Confederate Flags That Will Absolutely Get Nullified

from the free-speech-and-all-that dept

Let's be clear: that fact that there are people all over America that for any reason would want to display the Confederate battle flag is monumentally stupid. For starters, the flag is the symbol of a rebellion launched over southern states' desire to own other people. Don't give me the "states rights" argument; it's entirely invalid, unless the states right you're talking about is slavery. On top of that, the Confederacy, you know... lost. Proudly displaying the symbol of loserdom is both hilarious and befuddling.

Now that that's out of the way, entirely too often the folks who abhor the Confederate flag participate in a massive over-reaction to it. We saw this after Dylann Roof proved just how evil humanity can be in shooting up a historical African American church, with far too many people and companies focusing on displays of the flag, as though that were the real issue.

And now, in a move far more disappointing, Andrew Cuomo has signed into law a ban in New York State on the sale of the Confederate flag and other "symbols of hate" on public property.

"This country faces a pervasive, growing attitude of intolerance and hate—what I have referred to in the body politic as an American cancer," he wrote. "By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols."

Cuomo noted that "certain technical changes are necessary" to make sure the ban is compliant with the First Amendment, which protects free expression—including the expression of hateful ideas.

Should it not be obvious, it would be hard to state how performative and stupid this all is. This law will not survive a First Amendment challenge. There is no ground on which free speech is compatible with a law banning private persons from selling expressive symbols on public land. A whole lot of people are pointing to Germany's prohibition on Nazi imagery and symbols, as though that country's protection of free speech means that such prohibitions are compatible with free speech. They aren't. At all. We might want to say that Germany by and large has free speech, but that law is an exception to the rule, not evidence of it.

And Cuomo, who reportedly has his eyes on being Biden's Attorney General, most definitely knows better than this. And even beyond that, it's worth noting that this bill is a complete mess, somehow managing to be too broad and too ineffectual to have the desired effect.

It prohibits the sale of "symbols of hate," which it defines as "including, but not limited, to symbols of white supremacy, neo-Nazi ideology, or the battle flag of the Confederacy." Keep in mind that we live in a world where some people think the OK hand gesture is a white supremacist signal, and the New York Human Rights Commission has been particularly inclined to over-interpret the government's mandate to ban things. This is not a recipe for restraint.

The bill also exempts museums, books, and "educational purposes" in general, which provides wild interpretive leeway. And the aforementioned fairgrounds provision applies to private actors on public property, which is almost certainly unconstitutional. In 2008, the Supreme Court ruled 8–1 that a notorious hate group, the Westboro Baptist Church, could stand on public property and shout obscenities near the funerals of military service members. There's little question that the First Amendment broadly protects hateful speech on public property.

And, to reiterate, Cuomo absolutely knows this law is going to get struck down one way or another. This is all pure theater for the cameras, the kind of performative woke-ism that is the exact opposite of small-L liberalism.

So why bother doing this at all?

Filed Under: 1st amendment, andrew cuomo, confederate flag, constitution, new york

As A Parting Shot, Tulsi Gabbard Teams Up With Paul Gosar To Introduce Yet Another Unconstitutional Attack On Section 230

from the tis-the-season dept

Back in October, Reps. Tulsi Gabbard (who is leaving Congress in a few weeks) and Paul Gosar (whose had six of his own siblings tell voters that their brother should not be in Congress), teamed up to introduce an incredibly stupid anti-Section 230 bill, which would take 230's liability protections away from any site that does basic data tracking or has an algorithmically generated feed.

Apparently that wasn't enough, because they've now teamed up to introduce a second anti-230 bill that is (would you believe it?) even more ridiculous. They're calling it the "Break Up Big Tech Act."

The Breakup Big Tech Act of 2020 would take away legal immunity from interactive computer service providers that engage in certain manipulative activities, including social media companies who act as publishers by moderating and censoring content. Specifically, the Breakup Big Tech Act of 2020 would remove legal immunity for providers that engage in the following activities:

• Selling and displaying personalized as well as contextual advertising without user’s consent
• Collecting data for commercial purposes other than the direct sale of the interactive computer service, i.e. turning the user into a commodity or otherwise monetizing the transmission of content
• Acting as a marketplace in the digital space by facilitating the placement of items into the stream of commerce
• Employing digital products and designs intended to engage and addict users to the service
• Acting as a publisher by using algorithms to moderate or censor content without opt-in from users

Now there are certainly plenty of legitimate questions to be had about that list of activities, and whether or not they should be allowed, or how and if they should be regulated. Those should all be subject to some level of debate and discussion. But to say "just wipe out 230's liability protections" for any company that does any of those things... is legitimately crazy.

This bill is going nowhere, because this Congress is basically over, so I won't go point by point on how stupid a bill this is, but I'll just note that last point is punishing a company for making editorial choices, and the 1st Amendment would probably like to explain to Gabbard and Gosar just how incredibly unconstitutional that would be.

Gabbard still really seems to be smarting from the fact that her dumb lawsuit against Google was easily dismissed. But here's the key: the lawsuit was dismissed on 1st Amendment grounds, not because of 230. And changing 230 doesn't change the 1st Amendment (which she swore to protect and uphold, but apparently doesn't care about).

Filed Under: 1st amendment, break up big tech act, paul gosar, section 230, tulsi gabbard

Federal Court Says Sanctions Are On The Way For Portland PD Over Violations Of Protest Restraining Orders

from the rule-of-law-is-cool-until-it-applies-to-you,-I-guess dept

Police forces -- both local and federal -- greeted Portland protests with violence. To be sure, there were some violent protests. But officers of both varieties felt they should be able to target journalists and legal observers with the same force they were deploying against rioters.

Once the feds rolled into town, things got worse. This was met with litigation, with journalists and observers asking the court to make the cops play by the normal rules of engagement. If journalists and observers weren't committing any crimes, they should be free to report and observe without fear of being beaten, shot at, or gassed.

The court agreed. So did the court above it, albeit belatedly. Injunctions were granted, prohibiting the use of force against the plaintiffs. These injunctions were immediately violated, resulting in more litigation.

It wasn't just the feds, although the feds were the most immediately noticeable violators of this court-ordered relief. The local police were having problems keeping themselves from greeting non-violent protesters with violence. A federal judge has just ruled that the Portland Police Department (PPD) violated his instructions and his restraining order on multiple occasions. (via Courthouse News Service)

Back in June. Judge Marco Hernandez banned the use of tear gas by cops except in life threatening situations. Another modification to his order banned the use of rubber bullets and pepper balls against "people engaged in passive resistance." According to Hernadez's latest ruling [PDF], the Portland Police have continued to violate his orders.

The court cites several instances detailed by protesters. In at least three cases, PPD officers violated the court's instructions on force deployment during a protest on June 30 -- less than a month after Hernandez issued his first order.

As described above, FN303s and 40mm less-lethal launchers must be used “as outlined in PPB Use of Force Directive 1010” and “shall not be used where people engaged in passive resistance are likely to be subjected to the use of force.” FN303s and 40mm less-lethal launchers are impact munitions governed by ¶ 6.4.2 of Use of Force Directive…

The Court finds that three of the eight incidents involving the use of impact munitions violated the Order. These three incidents include: (1) two deployments of fifteen rounds from an FN303 against individuals carrying a banner (Incidents 2 and 3) and (2) the deployment of a few rounds from an FN303 against an individual picking up an unknown object between the protest line and the police line (Incident 9). The remaining incidents did not violate the Order.

In one instance, the PPD tried to justify its excessive force by claiming a banner held by retreating protesters could have injured officers.

Officer Taylor testified that he deployed his FN303 against an individual holding onto a banner because he believed the banner would later be used as a weapon. Specifically, he cited the following circumstances in support of his belief that the banner may be dangerous: (1) the atmosphere of the protest that day; (2) the movement of protestors behind the sign as though it was a shield; (3) the slow pace of the protestors holding the banner, causing interference with the police formation; (4) the protestor’s refusal to let go of the banner; and (5) the use of PVC pipe as the banner’s frame, which he testified can be reinforced with cement or nails.

We're going to need a lot more than pure speculation, says the court.

But none of the circumstances cited by Officer Taylor suggested that this banner was a weapon or would be imminently used by protestors as a weapon.

And it's not like the protesters were operating under the cover of darkness to manufacture a PVC-and-cloth weapon of mass police destruction.

Police officers had ample opportunity to observe the banner before Officer Taylor deployed his munitions. The incident occurred while it was still light out, and video shows that the long PVC banner was flimsy.

Unjustified. And a violation of the judge's order.

And—most importantly—nothing suggested that the individual Officer Taylor targeted was engaged in “[a] threat or overt act of an assault, . . . which reasonably indicate[d] that an assault or injury to any person was about to happen, unless intervention occur[ed].” Use of Force Directive 1010 (Definitions). At most, the record shows that the individual who was refusing to let go of their sign was engaged in passive resistance.

While the PPD has mostly complied with the orders, it has not always complied with all the orders. Being mostly compliant simply isn't good enough. The court says sanctions are incoming.

Defendant has failed to demonstrate that it took all reasonable steps to comply with the Order. The Court acknowledges that Defendant took some steps to ensure compliance on June 30. Captain Passadore, for example, read the requirements of the Order over the radio after calling for attention from all officers involved in crowd control on the evening of June 30. There is also evidence in the record that Captain Passadore directed all supervisors to ensure that all officers were informed of the requirements of the Order. And the Court is cognizant that PPB has been stretched thin over the past few months with the same RRT officers working endless hours in response to ongoing protests. It is also aware of the effect the pandemic has had on PPD's ability to conduct additional trainings. Nevertheless, the Court cannot conclude that a single radio transmission and a discussion with RRT officers and supervisors on June 30, 2020, constitutes “all reasonable steps” Defendant could have taken to ensure compliance with the Order that evening. Accordingly, the Court finds Defendant City of Portland in contempt.

Unfortunately, if this comes down to fines, the City of Portland will just dig into its bag of "Other People's Money" and pay them. But it could result in further restrictions, which isn't going to work out well for an agency that's already demonstrated it can't follow printed instructions.

Filed Under: 1st amendment, free speech, journalists, police, portland, portland pd, protestors, use of force

Florida State Police Raid Home Of COVID Whistleblower, Point Guns At Her & Her Family, Seize All Her Computer Equipment

from the this-is-fucked-up dept

This is insane. Earlier this year, we wrote about Rebekah Jones, the data scientist working for Florida, who put together that state's COVID-19 database (that had received widespread praise), and who was fired by the state for her failure to fake the data to make it look like Florida was handling the pandemic better than it actually was. Governor Ron DeSantis had made it clear he wanted data showing good results in order to justify reopening the state.

As Jones herself explained after being fired:

I was asked by DOH leadership to manually change numbers. This was a week before the reopening plan officially kicked off into phase one. I was asked to do the analysis and present the findings about which counties met the criteria for reopening. The criteria followed more or less the White House panel's recommendations, but our epidemiology team also contributed to that as well. As soon as I presented the results, they were essentially the opposite of what they had anticipated. The whole day while we're having this kind of back and forth changing this, not showing that, the plan was being printed and stapled right in front of me. So it was very clear at that point that the science behind the supposedly science-driven plan didn't matter because the plan was already made.

Since then, Jones has been running Florida COVID Action, which is a dashboard of Florida COVID information, like the one she used to run for the state.

And apparently Florida's Governor Ron DeSantis couldn't allow that to stand. This afternoon Rebekah posted a short Twitter thread, with video, showing Florida state police raiding her home. As she notes, when they asked her who else was in the home, she told them that her husband and children were upstairs, and they pulled out their guns:

This is horrifying on so many levels. Why was her home raided? Why did they pull out guns? Why did they do it after she told them that it was her children upstairs? Why did they seize all of her electronics equipment? Why are they doing any of this?

Jones has been doing everything to better inform the public of what's happening in the middle of a pandemic, and this is the thanks she gets? Having her home raided by the police and having guns drawn on her children?

This is not supposed to happen. This should not happen. It is horrifying and I hope that Jones is able to retain powerful legal help to fight back against this clear violation of her civil liberties, and a clear authoritarian overreach by Governor DeSantis.

Update: Since the original story broke, Florida state police claim that the search warrant was in response to someone breaching an emergency alert system and sending a group text saying: "It's time to speak up before another 17,000 people are dead. You know this is wrong. You don't have to be a part of this. Be a hero. Speak out before it's too late." The warrant claims that the breach was tied to an IP address at Jones' house. Jones has vehemently denied she had anything to do with this:

"I'm not a hacker," Jones said. She added that the language in the message that authorities said was sent was "not the way I talk," and contained errors she would not make.

"The number of deaths that the person used wasn't even right," Jones said. "They were actually under by about 430 deaths. I would never round down 430 deaths."

Later in the evening, the full search warrant was published, and it raise serious questions... not about Jones, as much as what the fuck Florida's Dept. of Health is doing with its communications systems. The service that Jones is accused of using involves a shared password among a ton of people:

On November 10, 2020, at approximately 1420 hours and 1442 hours, an unidentified subject gained access to a mull—user account group StatoESF— 8 Planning" and sent a group text stating the following: "it's time to speak up before another 17,000 people are dead. You know this is wrong. You don't have to be part of this. Be a here, Speak out before it's too late— From StateESF8 Planning". FDOH estimates that approximately 1,750 messages were delivered before the software vendor was able to stop the message from being transmitted.

FDOH has several groups within ReadyOp's application platform, one of which is StateESF8.Planning. ESF8 is Florida's Emergency Support Function for Public Health and Medical with which they coordinate the state‘s health and medical resources, capabilities, and capacities. They also provide the means for a public health response, triage, treatment, and transportation. The group StateESF8.Planning is utilized by multiple users, some of which are not employees of FDOH but are employees of other government agencies. Once they are no longer associated with ESF8 they are no longer authorized to access the multi—user group.

All users assigned to StateESF8.Planning group share the same username and password. SA Pratts requested and received a copy of the technical logs containing the Internet Protocol (IP) address for users accessing the ReadyOp web—based platform for the multi—user StateESF. Planning.

As security pro Jake Williams notes, it is bizarre beyond belief that (1) you have an important system relying on a single shared username and password and that such login info is not changed after someone is fired:

Still, it sounds like we may end up seeing a classic CFAA-style case here, regarding "unauthorized access." Unfortunately, there are some cases on the books where logging into a system where you had a password after you've been instructed not to do so any more means you've violated the CFAA. This is kind of stupid, because it should be on the organization itself to actually change the password, rather than putting the burden on the user... but if there's real evidence here that she did access the system, she could be in serious CFAA trouble.

Even so, that's no excuse for raiding her home with guns drawn.

Filed Under: covid, covid-19, data breach, florida, florida state police, intimidation, raids, rebekah jones, ron desantis, warrant, whistleblower