Georgia Court Streams Ridiculous 'Kraken' Lawsuit Hearing On YouTube; Then Tells People They Can't Repost Recordings

from the not-how-it-works dept

We have lots of concerns about court transparency, and how more transparent court systems would be nice. One of the more interesting consequences of the pandemic, in which many court hearings are now done virtually, is that courts have been much more open to allowing more realtime access to these court hearings. In one of the more high profile (and more ridiculous, if that's possible) lawsuits challenging the election results -- the so-called "Kraken" lawsuit in Georgia -- there was a hearing earlier today. The court announced that the audio would stream on YouTube:

That says that the audio will be streamed on YouTube and provides you with a link. However, beneath it, it says the following:

The U.S. District Court for the Northern District of Georgia is participating in an audio pilot program permitting a limited number of district courts to livestream audio of certain civil proceedings with the consent of the parties. Under the pilot program, audio of qualifying civil proceedings will be livestreamed on the court’s YouTube channel.

Audio recordings will not be available for playback on YouTube after proceedings have ended. Audio, in full or in part, from any proceeding may not be recorded, broadcast, posted or reproduced in any form.

And, uh, what? I kind of understand (if seriously disagree with) rules in courts saying that people in the courtroom are not allowed to record, but cannot fathom any possible way in which the court can say that audio that they've streamed out on the open web cannot be recorded or used in any form.

And already there seems to be some crackdown on those who did make use of the recordings. Reuters legal reporter Jan Wolfe was told to delete her tweets with the recording of Judge Timothy Bratten shutting down the lawsuit:

And, if you go to the original YouTube video where the court hearing was officially streamed, you now see this:

This seems absolutely ridiculous. I also cannot conceive of any possible basis for which the courts can force someone, especially a reporter, to not record or republish using the publicly available audio stream. And it's not that difficult to find the audio stream reposted elsewhere.

As reporter Brad Heath notes, this seems both short-sighted and beyond the authority of the courts:

I'd go beyond short-sighted. It's ridiculous. And demanding people take down such things seems to raise serious 1st Amendment issues.

Filed Under: 1st amendment, audio streaming, courts, free speech, georgia, prior restraint, recordings, sidney powell, transparency

French Legislators Outlaw Discriminating Against People Because Of Their 'Regional Accents'

from the most-French-legislation-ever-passed dept

France's relationship with free speech is strange. On one hand, no one protests like the French protest. Given the nation's predilection for targeted vandalism and guillotine construction, it would seem the government would have taken notice of citizens' right to engage in speech that's right on the edge of targeted violence… all without losing sight of the importance of that speech.

But for every bit of slack cut to protesters, the government still targets the people's freedom to express themselves. This results in more protests and more backtracking, but the country's government is surprisingly resilient. It just shrugs off the latest protests and tries again.

The government has passed laws that allow the literal police to literally police the internet for speech the government doesn't like. This law was struck down by the courts but there can be little doubt a replacement is in the works. The government has also sided with extremists by engaging in speech-related prosecutions that target citizens who've criticized extremists. The firebombing of a French satirical newspaper by Islamic extremists hasn't nudged the dial towards freer speech, unfortunately. The government has also made insulting certain politicians a crime and has given itself broad powers to take down internet speech.

So, it's unsurprising the government has gotten itself into the business of regulating ridicule. A new law forbids citizens from denying services to other citizens who may be sporting the "wrong" accents, targeting a cornerstone of French culture: disparaging of people who "aren't from around here."

The Assemblée Nationale of France made discrimination based on regional accents an actionable offense Friday, adopting a bill proposed by deputy Chrisophe Euzet by a vote of 98 to 3. The new law punishes accent discrimination in the same manner as discrimination based on ethnicity, gender or disability. Those who violate the law may face up to three years in prison along with a 45,000 euro fine.

I can't even imagine how this will be enforced, other than "arbitrarily" and "badly." There's some basis for the law, I guess. A report by the Committee on Constitutional Laws claims 27% of respondents have been "mocked" for their accents and 16% have been discriminated against because their accent wasn't considered acceptable.

The Committee -- and the legislators approving this bill -- are hoping to create a cultural shift toward acceptance and tolerance. This shift will be encouraged with a legislative hammer, as the Committee's report insinuates.

The present bill aims to promote the diversity of pronunciation of the French language by prohibiting “discrimination by accent” that we see factually in functions involving, in particular, public expression: the test intends to change attitudes overtime by initiating the modification of the law in force.

"Cultural shifts over time" are possible. Not all of them require new laws and fines. I don't condone discrimination but a new law that hinges on characteristics that are far from immutable opens the door for the government to regulate any number of interactions between private companies and their customers based on little more than the sort of claims that surface in questionable Yelp reviews.

I'm of two minds about this. I don't care for baseless discrimination over something as insignificant as regional dialects. But I also recognize the regional dialect thing can go both ways, allowing those with "wrong" accents to be just as discriminatory against those they think are high-class assholes who deserve to be given a ride just because they happen to come from the "right" places. (See also: Deliverance, Southern small town speed traps, etc.) This is a uniquely French way of dealing with a deep-seated problem, even if evidence of the problem and/or its deep-seatedness doesn't necessarily appear to be on the record.

Filed Under: accents, france, free speech

French Gov't Walks Back Proposal To Make Publishing Images Of Police Officers Illegal After Massive Protests Erupt Across The Nation

from the of-course-it's-a-'national-security'-thing dept

For reasons only known to legislators who apparently had their ears bent to the point of detachment by law enforcement, the French government -- at least briefly -- believed the nation would be better secured if citizens weren't allowed to film police officers and publish those recordings online.

A bill passed through the general assembly that would have made this act a crime.

One of its most controversial elements was Article 24, which sought to criminalise the publication of images of on-duty police officers with the intent of harming their “physical or psychological integrity”.

Under the article, offenders faced sentences of up to a year in jail and fines of 45,000 euros ($53,760) for sharing images of police officers.

This sounds like an effort to prevent doxxing but, given the breadth of the language in the proposed law, it could be read to forbid recording any officer who felt they might be harmed by their actions being documented. And it could be argued (with varying degrees of success) that any publication of images/recording depicting officers in any way they didn't explicitly approve of is "harmful."

And the proposal couldn't have come at a worse time. French law enforcement is facing additional scrutiny after a recording of officers beating a black man surfaced online.

Paris's top prosecutor has called for four police officers under investigation over the beating of a black music producer to face charges and for three of them to remain in detention as the probe continues.

[...]

The three officers suspected of carrying out the beating should remain in custody, he said, while a fourth, who arrived on the scene later and set off a tear gas canister, should be freed under conditions.

With this flame still burning, French legislators tossed this accelerant on the fire. No more documenting police activity because natsec. The citizens responded to this attempted shielding of bad cops as the French often do: with massive protests and a bit of violence.

Tens of thousands of critics of a proposed security law that would restrict the filming of police officers protested across France on Saturday, and officers in Paris who were advised to behave responsibly during the demonstrations repeatedly fired tear gas to disperse rowdy protesters who set fire to France’s central bank and threw paving stones.

Faced with consecutive protests (the one over the beating that rolled into the one over the proposed law), French legislators are backtracking.

France’s national assembly on Monday dropped a key provision of a controversial bill that would have curtailed the right to film police officers during their work.

Christophe Castaner, the head of President Emmanuel Macron’s ruling LREM party, told journalists that the bill will be scrapped and rewritten, with a new version going before parliament.

For the time being, filming the police in France is still legal, even if an officer argues they've been harmed by being observed. Unfortunately, the proposal isn't completely dead. Article 24 will be revamped but it won't be until early next year. Right now, the bill is too hot to touch. A couple of months in the cooler -- and the onset of cooler weather -- might temper both protesters and belatedly irate lawmakers. If so, it could reappear mostly unchanged, especially if legislators feel the security of the nation is more important than law enforcement accountability.

Filed Under: france, free speech, photographing police, police, protests, recording police

Tennessee State Rep Ask US Congress To Ignore Supreme Court Precedent And Outlaw Flag Burning

from the 'attached-please-find-all-the-reasons-this-won't-work' dept

Perhaps Tennessee State Representative Jay Reedy read the electoral room wrong on November 5 and thought his boy would remain president for another four years. Maybe he was just drunk on the success of securing his state rep position in the general election after a strenuous unopposed campaign. Whatever the case, Rep. Reedy is apparently hoping Congressional reps will return to Capitol Hill refreshed and ready to violate the Constitution.

The first shot of Rep. Reedy's new term is this: a resolution urging Congress to make flag burning illegal. This is something Trump threatened to do a handful of times during campaign rallies. This is also something pretty much no one seriously thinks would have a chance of standing up to Constitutional scrutiny. Nevertheless, this resolution exists. And the best part of the resolution is it explains exactly how it will fail even as it calls for Congress to make it happen. (h/t Peter Bonilla)

WHEREAS, a 1931 case set the first precedent for the use of a flag in an act of symbolic speech under the First Amendment, when the Court struck down a California law that banned the flying of a red flag to protest against the government; and

WHEREAS, in 1968, Congress approved the Federal Flag Desecration Law after a Vietnam War protest. The law made it illegal to "knowingly" cast "contempt" upon "any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it."; and

WHEREAS, the Court moved toward its 1989 decision about flag burning in 1974, when it said in Spence v. Washington that a person couldn’t be convicted for using tape to put a peace sign on an American flag. A majority of the Court saw the act as protected expression under the First Amendment; and

WHEREAS, during the next decade, states narrowed the focus on their flag desecration laws, but they still prohibited flag burning and other acts of mutilation. The issue was then decided, at least in the Supreme Court, in the decision of Texas v. Johnson…

We'll stop there for the moment because there's already so much to work with. This breaks down the history of flag desecration laws being struck down as unconstitutional. Somehow, this is Reedy's pitch for a federal flag desecration law. And it takes someone really special to claim that an issue may still be unsettled ("decided, at least in the Supreme Court"), when it has been already been addressed by the US Supreme Court.

Twice.

WHEREAS, in reaction to the Johnson decision, which only applied to the state of Texas, Congress passed an anti-flag burning law called the Flag Protection Act of 1989. However in 1990, the Supreme Court struck down that law as unconstitutional.

All of that notwithstanding (somehow), Reedy believes Congress can exercise its federal superpowers to craft a law that bans flag burning while still remaining aligned with the First Amendment.

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ONE HUNDRED TWELFTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE SENATE CONCURRING, that we strongly urge the United States Congress to enact legislation to prohibit the desecration of the United States flag.

Chances are this resolution will never make its way to Congress, no matter how much the Tennessee state legislature leans right. And this is just more jingoistic patriotism masquerading as public service from a state rep who has introduced a bunch of other dead-in-the-legislative-water timewasters over the past few years, including:

• A bid to add a section detailing the history, economic impact, and cultural uses of the Bible to the state's official government manual.
• An internet porn filter proposal that would have required of-age Americans to affirmatively opt in to access pornography -- one that asked the US Congress to enact internet filtering legislation and the DOJ to "vigorously enforce" federal obscenity laws.
• An amendment to the state Constitution declaring the listed rights came from "Almighty God."
• A resolution to designate the Bible as the official state book.
• A bill allowing law enforcement to search any vehicle parked in a jail parking lot.
• And… in this session, during a pandemic, an anti-vax bill.

Constitutionality is not Rep. Reed's strong suit. I guess the rights given to state residents (and Americans located elsewhere) by the Almighty God should be subject to Reed's personal beliefs about where those rights begin and end.

Filed Under: 1st amendment, flag burning, free speech, jay reedy, supreme court, tennessee

Federal Court Strikes Down California's Ban On 'Offensive' License Plates

from the California-drivers-will-now-have-to-be-offended-on-their-own-dime dept

License plate rules are weird. Vanity plates are something anyone can obtain for a fee to personalize their vehicle… just as long as they follow a set of shifting rules arbitrarily enforced by their license plate overseers. There's a lot of talk about only forbidding what's "objectively" offensive, but digging around in DMV databases -- as several litigants have done -- show there are a lot of rejections based on DMV employees' subjective ideas of what is or isn't offensive.

That's how we end up with ridiculous rejections like forbidding a former cop from tagging his own car with a self-deprecating "O1NK." On the other end of the spectrum, a man wanting to state the truth about law enforcement dishonesty saw his "COPSLIE" plate rejected. Ultimately, he prevailed -- thanks to a state Supreme Court ruling. But what did he win? Most likely, just a future filled with pretextual traffic stops.

It's a weird interaction of government and free speech, where citizens' free speech is tempered by the limitations imposed on government property the government mandates they must place on their vehicles. But the most disingenuous argument is that allowing "offensive" vanity plates -- plates that are inherently the expression of citizens who choose to pay extra for a personalized plate -- might give stupider constituents the impression the state government approves of the messages displayed on [checks notes] residents' personal vehicles.

Logic would dictate personalized plates reflect the opinions of the person paying for them. Courtroom logic is still all over the place, thanks mainly to the fact the government prints the plates. Is a normal plate -- one obtained after all personalized attempts are rejected -- compelled speech? Probably not. But there's definitely a First Amendment argument to be made that rejecting "offensive" personalized plates is the government deciding only certain forms of car-specific speech are acceptable.

A federal judge has decided California's rejection of "offensive" vanity plates violates the First Amendment. To do so, the court looked at Supreme Court precedent involving trademark registrations. In a case decided in 2017, the Supreme Court sided with a band calling itself "The Slants," a name that appropriated derogatory slang aimed at those of Asian descent. The Asian-American band hoped to reclaim a term its members may have been subjected to, but USPTO was of the firm belief anything considered "offensive" should be rejected out of hand. The Supreme Court disagreed, finding this to be "viewpoint discrimination" -- a violation of the First Amendment. The Supreme Court invalidated the Lanham Act's prohibition on "immoral or scandalous" trademark registrations two years later in its Brunetti decision.

Both cases are cited in this decision [PDF], which says the state's restrictions on speech are arbitrary and unjustifiable under the First Amendment. (h/t Courthouse News Service)

The court first runs down the list of things forbidden by the California DMV, which is everything it considers to be "offensive to good taste and decency."

1. The configuration has a sexual connotation or is a term of lust or depravity.

2. The configuration is a vulgar term; a term of contempt, prejudice, or hostility; an insulting or degrading term; a racially degrading term; or an ethnically degrading term.

3. The configuration is a swear word or term considered profane, obscene, or repulsive.

4. The configuration has a negative connotation to a specific group.

5. The configuration misrepresents a law enforcement entity.

6. The configuration has been deleted from regular series license plates.

7. The configuration is a foreign or slang word or term, or is a phonetic spelling or mirror image of a word or term falling into the categories described in subdivisions 1. through 6. Above.

It must be noted DMV plate request reviewers familiarize themselves with unfamiliar slang via at least one credible source.

Third, “[i]f the configuration represents an unfamiliar slang term, foreign word, or acronym, or may be otherwise offensive,” the reviewer conducts “additional research.” This research includes the use of online resources such as Urban Dictionary, Google, and Google Translate.

The plaintiffs in this case represent a pretty decent cross-section of Californians. All of them had their plates rejected by the DMV.

Plaintiffs Paul Ogilvie, James Blair, Amrit Kohli, Andrea Campanile, and Paul Crawford are California residents whose requests for personalized license plates were denied by the DMV under Section 206.00(c)(7)(D). Ogilvie is an Army veteran who requested the plate configuration “OGWOOLF,” which reflects his military nickname, “OG,” and “his longtime interest in wolves.” The DMV denied this configuration because it “contained a gang reference.” Blair, a “long-time fan of the rock band ‘Slayer,’” requested the configuration “SLAAYRR.” The DMV rejected his submission on the ground that it “may be considered threatening, aggressive, or hostile.” Kohli is “gay and established Queer Folks Records in an effort to reclaim the word ‘Queer.’” The DMV rejected his request for the configuration “QUEER” because it “may be considered insulting, degrading, or expressing contempt for a specific group or person.” Campanile, who owns two Ducati motorcycles, requested the configuration “DUK N A,” which she intended to mean “Ducati and Andrea.” The DMV rejected the configuration because it “is a swear word, looks or sounds like a swear word, or represents a term or phrase that may be considered profane or obscene.” Crawford owns Shakespeare Pub, whose slogan is, “Real beer, proper food, no bollocks.” The DMV rejected his proposed configuration of “BO11LUX” because the configuration “has a discernable sexual connotation or may be construed to be of a sexual nature.”

Appended to that is this comical footnote, quoting DMV Director Steve Gordon's sworn statements.

Gordon explains that “Campanile’s ‘DUK N A’ plate is one letter away from ‘FUK N A,’ which is profane.”

The court says the DMV's guidelines closely track with the USPTO restrictions the Supreme Court previously found unconstitutional.

First, the Court holds that California’s prohibition on personalized license plate configurations “that may carry connotations offensive to good taste and decency” constitutes viewpoint discrimination under Tam and Brunetti. Kohli, who identifies as gay and established “Queer Folk Records” and the music label “Queer Folk” – which is trademarked by the United States Patent and Trademark Office – describes his “effort to reclaim the word ‘Queer’” in a manner that mirrors Tam’s efforts to “drain [‘slants’ of] its denigrating force.” The DMV’s determination that “QUEER” “may be considered insulting, degrading, or expressing contempt for a specific group or person,” and thus “may be considered offensive,” ECF No. 41-15 at 2, reflects both the assessment of a viewpoint – an assessment that may or may not be correct, depending on the context – and the regulation’s effect of “disfavoring ‘ideas that offend.’” Brunetti, 139 S. Ct. at 2301 (summarizing the Tam holding). This is “discriminat[ion] against speech based on the ideas or opinions it conveys.”

The court also says the law isn't specific enough to minimize intrusions on protected expression. While the code provides a list of things the DMV won't allow, plate screeners are instructed to go beyond the listed restrictions when vetting plate applications.

The regulation states that the DMV “shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which include[], but [are] not limited to” the more specific subparts. Cal. Code Regs. tit. 13, § 206.00(c)(7)(D) (emphasis added). In addition, the DMV denial codes instruct reviewers to deny categories of speech that are not enumerated in the subparts. Configurations that the DMV has decided “may carry connotations offensive to good taste and decency,” include those that contain a “reference to drugs,” a reference “to guns, weaponry, shooting, or an instrument normally used to inflict harm,” or “a number, color, phrase, or code commonly used to represent gang affiliation.” Such categories of speech are not delineated in Section 206.00(c)(7)(D)’s subparts.

The court says the DMV's standards aren't actually standards. The word "standard" usually suggests consistent application. But the record shows the DMV is all over the place when it comes to approvals and denials.

For example, the current denial codes explain that “the number 69 is restricted to use on 1969 model vehicles only.” In keeping with this policy, the license plate 1969Z was issued for a 1969 Camaro Z28, and the following plates were denied: 65VET69 (which the applicant explained was meant to represent “veteran from 1966 to 1969”); and 698 (which the applicant explained was to stand for June 1998). However, three other license plate configurations were denied despite the applicants explaining that 69 was the year each vehicle was made. Id. (69LUIE); ECF No. 41-23 at 4 (F9 69); id. at 8 (69MXNVW). And the license plate “SEPT369” was issued to an applicant who explained that it was his/her birthday. Finally, 69 LUV N – arguably the configuration most likely to be interpreted as a sexual reference – was accepted because the applicant described the meaning as “loving my 69 GMC.” The Court therefore finds that even the straightforward ban on the number 69 has been arbitrarily applied.

The same goes for other abbreviations and acronyms. The state approved "DUK N GO" but rejected the plaintiff's "DUK N A." If approved OG 69LRK but rejected OGWOOLF. The DMV can't explain these inconsistencies. And this routine inconsistency is the reason it's unconstitutional.

The fact that initial reviewers are reversed on appeal “approximately 65 to 75 percent of the time,” id. at 31, supports the Court’s conclusion that the DMV’s “haphazard interpretations” of Section 206.00(c)(7)(D) apparent in the record are not anomalous, Minn. Voters, 138 S. Ct. at 1888. The Court therefore concludes that the DMV has failed “to articulate [a] sensible basis for distinguishing what may come in from what must stay out,” and holds Section 206.00(c)(7)(D) to be unreasonable.

The haphazardly enforced law is now the illegal-to-enforce law.

The Court declares that Section 206.00(c)(7)(D)’s ban of personalized license plate configurations “offensive to good taste and decency” violates the First Amendment to the United States Constitution.

The DMV will still be able to block profanities but the rest of its enforcement will have to be viewpoint-neutral. Certain letter combinations can still be banned, but they'll be banned for everyone, not just those reviewers subjectively believe are aiming to offend.

Filed Under: 1st amendment, california, dmv, free speech, license plates, offensive speech

Cryptocurrency Giant Binance Sues Forbes, Driving New Attention To Article About Binance's Corporate Structuring

from the crypto-streisand dept

Binance is one of, if not the, biggest cryptocurrency exchanges around. Its famously vocal CEO Changpeng Zhao (known as CZ) has positioned himself as a supporter of free speech, and even sees cryptocurrency/blockchain as a key element in that. Frankly, Binance is a fascinating company that I think is working on a some very interesting projects. And that's why it's incredibly disappointing to see the company sue Forbes over an article published last month, using lawyer Charles Harder (as you'll recall, Harder was the lawyer in the case against us and has a reputation for filing sketchy SLAPP lawsuits to try to stifle the media when it criticizes the rich and famous.)

Admittedly, CZ's support for "free speech" often seems to lack an understanding of what actual free speech means. He has (falsely) said that freedom of speech does not cover lies, which is simply incorrect in the US context. Of course, not all lies are protected. There is a very narrow slice that constitutes defamation that is not protected. But most lies and false speech is very much protected under the 1st Amendment and thus, contrary to CZ's belief, part of "free speech."

Given all that, I figured at the very least that Binance and CZ would have a stronger case against Forbes. But it's staggeringly weak. It appears to be a fairly classic SLAPP suit, designed to try to silence the media and suppress content that could be interpreted to make Binance look bad. The article, written by Forbes staffer Michael del Castillo, discusses a presentation that Forbes got a hold of, that the article claims was presented internally within Binance, detailing ways in which the company might avoid US regulators to offer highly leveraged cryptocurrency derivatives trading. The article mostly focuses on the details of the presentation, and then highlights how some moves that Binance has made appears similar to what is suggested in the presentation.

It is true that the Forbes article does not paint Binance in a positive light, and certainly raises questions about the company's actions. But to be defamatory there needs to be blatantly false statements of fact. And while the lawsuit does put out a list of 20 supposedly defamatory statements, some are clearly opinion, some are clearly taken completely out of context, and many are opinions based on disclosed facts -- all of which would make them not defamatory. For example, the very first statement that the lawsuit says is defamatory is:

Binance is pursuing an “Elaborate Scheme To Evade Bitcoin Regulators.”

But, note that "pursuing" is not put in the quote. Because the article doesn't directly say that. It notes that there was this presentation, which it shows a screenshot of and quotes extensively, and then notes the actions that Binance has taken that match what was in the document. But the factual claims of reporting on the document existing and what it says, as well as reporting on Binance's actual actions within the US don't seem to be denied.

Binance argues in the lawsuit that the guy who created the document, Harry Zhou, "is not and never was an employee of Binance." But the Forbes article notes that Binance's chief compliance officer Samuel Lim had emailed Forbes to confirm that Zhou had been a Binance employee. Based on that, Forbes certainly had reason to state that in its article. Bizarrely, the lawsuit says that that statement (the one about Lim emailing Forbes and confirming that Zhou had been an employee) is itself defamatory. That seems like a pretty straightforward claim. And, sure, if it turns out that Lim never sent any such email, then there's maybe a legit case here, but that would be... surprising. Also, the article presents further evidence that Zhou and Binance are connected in noting that the American Binance entity, Binance.US's "initial documents" (I assume they mean incorporation documents) showed that Binance.US shared an address with Zhou's previous company, Koi Trading. In fact, it was reported that Binance.US's original documents said that its address was not just at the same location as Zhou's Koi, but listed as "c/o Koi Compliance." It's possible that Zhou was never technically an "employee" of Binance, but there's enough evidence presented that shows that saying that is simply not defamatory.

Many of the other supposedly defamatory statements are either about Zhou being an employee, or simply repeating what was apparently in the document that Forbes got ahold of. Then you have some statements that are clearly opinion, such as:

“[Binance is] reminiscent of Amway-style multi-level marketing organizations.”

That line is also out of context. It elides the "somewhat" before "reminiscent" and the full statement is clearly opinion:

Binance’s novel approach, which is somewhat reminiscent of Amway-style multi-level marketing organizations, has created loyalty among its customers, and solved the nagging problems of retention experienced by many exchanges.

That's not defamatory. Or how about this:

“[T]here is speculation that the FBI and the IRS may be investigating” Binance.

That's not saying there absolutely is such an investigation -- it just notes that there is speculation of such an investigation.

Perhaps more importantly, nothing in the complaint even remotely tries to get over the actual malice standard, which is clearly required here, as the Supreme Court has held that it also applies in defamation cases brought by companies over issues of public interest. Yet, this is the only attempt to get over the actual malice standard that I can find in the complaint:

To the extent that actual malice is required to be pleaded and proven, Defendants made the false statements either knowing that the statements were false or with reckless disregard for the truth.

That's... just stating what the actual malice standard is. The complaint presents no real evidence that Forbes knew the report was false (indeed, it appears the company continues to stand by the report. The reporter highlighted the reasoning for all of the arguments, and disclosed what the reasoning was based on. This is the opposite of actual malice.

Frankly, it's surprising just how weak this all is. Especially given that filing this lawsuit is only going to drive that much more attention to the original Forbes article, and what's written in it. Filing this lawsuit seems like the ultimate Streisand Effect, only serving to bring more attention to the claims in the article, rather than refuting any of them.

Oh, and of course it's important to note that New Jersey, where the lawsuit has been filed, has no anti-SLAPP statute at all. Every state needs a strong anti-SLAPP statute, and we need a federal anti-SLAPP law to stop these censorial lawsuits designed to stifle free speech.

Filed Under: actual malice, anti-slapp, changepeng zhao, charles harder, cz, defamation, free speech, harry zhou, michael del castillo, slapp, streisand effect
Companies: binance, forbes

EU Court Backs Austrian Court, Says Local Libel Law Applies Everywhere In The World

from the WORLD-IS-YOURS... dept

Whole lot of people complaining about Section 230 at the moment. And it's a whole lot of people who should know better. Do you want to become Europe? Because this is how you become Europe.

In 2019, the Court of Justice of the European Union picked up a libel lawsuit handed to it by an Austrian court. The case dealt with a politician's thin skin and supposedly defamatory content… you know, the sort of kneejerk reaction we've come to expect from authoritarians and bullies running countries with horrendous track records on human rights. But this is Austria, which is generally considered to be part of the "free world," rather than a despotic dictatorship whose top politicians are to be viewed as gods among men -- at gunpoint, if necessary.

Even in the "free world," politicians far too often seem unable to handle criticism responsibly. There's really not much in this case that lends itself to any honest definition of the term "libel." Political rhetoric is superheated stuff, so a lawsuit over being called a "lousy traitor" on Facebook -- as Green Party politician Eva Glawischnig was -- should be considered an unactionable overreaction to normal online discourse. She was also called a "corrupt tramp" and a member of a "fascist party," which is a little more specific but well within the realm of opinion, rather than false statements portrayed as facts. Presumably even the person who posted the comments doesn't truly believe the politician is a sex worker who engages in the illegal acquisition of goods and services and/or is an actual facist.

None of this matters in Austria. And none of this matters in the rest of the world either, according to the Court of Justice for the European Union (CJEU). Last summer, the CJEU discussed the Austrian lawsuit and opined that maybe Europe should control what content anyone gets to see anywhere else in the world. A few months later, it solidified its shaky thinking, opining that the worldwide reach of the internet justified extraterritorial censorship.

Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.

In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.

Facebook complied with this ruling by geo-blocking the content in the offended country. But this wasn't enough for the CJEU, which backed the Austrian court's decision. The case has returned to Austria and what the court there has ruled apparently applies to everyone -- including US social media platforms.

Under the Austrian court precedent, courts in any such jurisdiction would be more or less free to apply their local laws to compel not just local, but global takedowns of posts or comments that violate the vagaries (and often highly speech-restrictive) of local law. And they could also require that copycat and equivalent posts be kept off—also on a global scale. This creates a classic risk of a race to the bottom, with the most censor-prone nation setting global speech rules.

This isn't the way the internet is supposed to work. It's not supposed to be subject to a bunch of fiefdoms wielding bad laws and bad legal precedent to decide what internet users around the world get to see. If Austria says these comments are defamatory (and it definitely shouldn't say that), then geo-blocking should be all that's required. But that's not how the CJEU sees it. And its backing of a bad Austrian court decision opens the door for more bad faith litigation from "leaders" who can't handle criticism without getting a lawyer involved.

Filed Under: austria, cjeu, eu, eva glawischnig-piesczek, global takedowns, internet, jurisdiction
Companies: facebook

Federal Court Says State Regulation That Compels Production Of Code May Violate The First Amendment

from the weird-twist-but-an-important-one dept

A rather interesting First Amendment opinion has been handed down by a federal court in Arizona. (h/t Volokh Conspiracy)

At the heart of it is new mandates for data sharing and data protection by car dealers. In 2019, the Arizona state legislature passed the Dealer Data Security Law, which mandates changes to dealer management systems (DMSs), including the institution of protective measures to limit breaches or leaks of sensitive data held by car dealers.

The law also requires DMS providers to integrate with third parties (like the dealerships themselves) and adopt standardized processes that will facilitate these integrations and improve compatibility between systems. The plaintiffs -- two DMS providers -- sued the state's Attorney General (along with the Arizona Automobile Dealers Association) claiming this new law violated the Constitution by compelling speech, namely the creation of new computer code and documentation.

And so, this law and its good intentions (more compatibility, better protection of sensitive data) is possibly on its way to being declared unconstitutional. As the court sees it [PDF], compelling the production of code violates the First Amendment.

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech. Plaintiffs claim that the law violates their free speech rights three ways: (1) by abridging their protected interest in exercising editorial discretion in the content of their computer systems; (2) by requiring that Plaintiffs draft code to facilitate disclosure; and (3) by functionally mandating that Plaintiffs write documents explaining the new standards they have adopted to comply with the Dealer Law. Because Plaintiffs' second proposed interest is sufficient to support its claim, the Court need not address the other assertions.

The court points to previous decisions by federal courts finding that software code is not only expressive, but worthy of First Amendment protections. Not all code falls under these protections, but the demands made by the state appear to do so in this case.

Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program. The Amended Complaint alleges "Plaintiffs must draft code to receive and respond to requests from `authorized integrators'. . . who will interact with the code by commanding it to communicate the information they choose to request." (Doc. 121 at 51.) It also states that the code will express the creative choices of the software developers and communicate those choices "to those who would access the Plaintiff's DMSs, as well as to other third-party programmers." Id. at 52. Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

The AG argued there's no First Amendment violation here because the law does not tell DMS providers what to say. It only orders them to adopt a data sharing framework that complies with the law. According to the AG, this merely mandates function and access, not how this is accomplished.

Wrong, says the court -- at least at this stage of litigation.

Plaintiffs' allegations go beyond the functional capability of their code because they claim users will interact with their program in a substantive way. Defendants' arguments that the Dealer Law is more properly considered a regulation on conduct therefore amount to disagreements about the factual consequences of the law and the drafted code.

It may be several months before this is resolved, but these arguments against the government's intrusion into private parties' software code has implications that reach beyond the specifics of this case. This is the same argument Apple made when fighting against the federal government's attempt to compel the production of an encryption backdoor in the San Bernardino case.

Under well-settled law, computer code is treated as speech within the meaning of the First Amendment.... The Supreme Court has made clear that where, as here, the government seeks to compel speech, such action triggers First Amendment protections..... Compelled speech is a content-based restriction subject to exacting scrutiny... and so may only be upheld if it is narrowly tailored to obtain a compelling state interest....

This may find its way to the appellate level if the state is unwilling to take a loss in the lower court or if the plaintiffs' First Amendment arguments are ultimately unsuccessful. Once courts start deciding code isn't speech, they invite the government to engage in far more nefarious proxy tinkering than the mild regulatory intercession on display here. Important constitutional questions are often answered during cases like these -- ones without national attention or particularly compelling plaintiffs/defendants. But they still need to be answered and courts still need to consider the long-term effects of their decisions. The First Amendment protects a lot of code, even code targeted by something more benign than a demand for an encryption backdoor.

Filed Under: 1st amendment, arizona, compelled speech, dealer data security law, free speech, source code

UK Politician Demands The Impossible: Social Media Companies Must Not Take Down Political Speech, But Must Block Disinformation

from the say-what-now?!? dept

UK Parliament Member Damian Collins has been pushing dangerous nonsense about social media content moderation for a while now. A couple years ago he held a theatrical hearing on fake news that was marred by the fact that Collins himself was spreading fake news. Last year, he announced incredibly dangerous ideas about "stopping fake news" on websites.

And now he's doing something even stupider. According to the Financial Times, Collins is working with Boris Johnson on forcing a "duty of impartiality" on websites, saying that they cannot moderate political content:

Downing Street is pushing for big tech companies to be subject to a “duty of impartiality” to prevent political bias as part of legislation to regulate dangers on the internet.

How the fuck would that work in practice? Not well, I imagine. And then Collins decided to make it worse. Responding to a question from Jeff Jarvis on Twitter about this "duty of impartiality," Collins uttered what might be the stupidest thing I've ever seen a politician utter regarding content moderation (and we've seen a lot of stupid things said):

He said:

In my view social media companies must not censor political speech but they have a responsibility to act against known sources of harmful disinformation wherever it comes from, including when it's from a President

Got that? The rule is that you can't takedown any political speech, but you have a duty to remove disinformation, including when it's from the President. Just take a second and marvel at the pure, unadulterated stupidity of that statement. It presumes that there's a bright line between "political speech" and "harmful disinformation." Anyone who knows anything knows that's not true at all. A ton of "political speech" is actually "harmful disinformation."

Hell, I'd argue that Collins' idea that this is easily distinguished is, in itself, "harmful disinformation." Should Twitter remove it? Or is that political speech.

Basically, what this comes down to is the same old shit. So many people think that social media companies should be forced to keep up the content they like, and forced to takedown the content they disagree with. It never occurs to them that their own personal tastes differ from others and that there's no way to write a regulation that takes into the account the bad taste of some clueless politicians.

Oh, and it gets worse. You see, MP Damian Collins has another possible solution. He's launched his own fact checking service, called "Infotagion," promising to tell people what is disinformation that must be removed, and what's okay.

In other words, he's positioning himself to be the Lord High Internet Censor of the UK.

We've discussed before the differences between content moderation and censorship, and let's be quite clear here: what Collins is proposing is not content moderation, but censorship. He's set up his own fact checking service, and seems to think that he can magically decide which content sites must all block, and which content they must allow. It's not hard to see how that kind of power will be immediately and frequently abused by petty and small minded politicians.

Filed Under: content moderation, damian collins, disinformation, duty of impartiality, fake news, free speech, political speech, uk

Trump Campaign's Ridiculous SLAPP Suit Against CNN Tossed Out Easily

from the as-expected dept

Back in March you may remember that we wrote about yet another ridiculous SLAPP suit filed by the Donald Trump campaign (using lawyer Charles Harder, who, you may also remember, was the lawyer in the lawsuit against us as well). Harder's track record in these performative cases continues to be... rather lacking. Last week, you may have missed that amidst all the other legal disputes Trump's campaign was losing, this particular case was also dismissed -- though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can't see how it passes muster.

If you don't recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble's opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown -- who was appointed to the bench by Trump -- rejects the complaint, but not because it was opinion and therefore not defamatory.

The case focuses on a single statement in Noble's CNN article:

“The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table”

While many other statements in the article include language making it clear that these are Noble's opinion, that one sentence doesn't have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.

A reasonable reader could readily understand the first part as alleging a weighing of the risks and benefits. It has a precise meaning. Defendants argue the second part is “couched in figurative, imprecise language, and thus is not actionable under New York [l]aw.” (Id. at 16.) The Court disagrees. While “[s]tatements ‘couched in loose, figurative or hyperbolic language in charged circumstances’ are more likely to be deemed opinions,” it is not an inflexible rule, and “the court should weigh the totality of the circumstances.”.... Thus, while “left on the table” is figurative language, it is also precise language. A reasonable reader could readily understand it to mean “available for consideration.” The Statement satisfies the first factor of the test.

However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had "reckless disregard" for the truth (which doesn't just mean they were sloppy -- it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this "actual malice" bar, and the judge is not impressed:

Most of the allegations in the complaint regarding actual malice are conclusory. Plaintiff, for example, alleges in a purely conclusory manner that Defendants “clearly had a malicious motive” and “knowingly disregarded all . . . information when it published the Defamatory Article.”... The complaint’s allegation that Defendants were “aware at the time of publication” that the Statement was false due to “[e]xtensive public information” is also conclusory and without factual support.... Allegations such as these amount to little more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” which are insufficient to support a cause of action....

Plaintiff’s only other allegation of actual malice is that Mr. Noble had “a record of malice and bias against the President” as evidenced by a tweet and previous articles he had written.... In the tweet, Mr. Noble wrote: “Trump cheats and lies, and when caught, lies again and claims the right to make the rules. He claims defeats as victories, takes credit for anyone’s success and blames his failures on others . . . .” (Id.) The Supreme Court has emphasized “that the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.”... The tweet might show Mr. Noble’s ill will towards the President, but it fails to plead actual malice in the constitutional sense—that is, it does not show Mr. Noble made the Statement with knowledge that it was false or with reckless disregard of whether it was false.

And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.

In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.

Filed Under: actual malice, charles harder, defamation, donald trump, larry noble, russia, trump campaign
Companies: cnn