Devin Nunes Asks Appeals Court To Invalidate Bedrock Supreme Court 1st Amendment Ruling

from the protect-and-defend-the-constitution dept

A year and a half ago, Supreme Court Justice Clarence Thomas indicated that he thought that NY Times v. Sullivan was wrongly decided. This is perhaps the most important 1st Amendment ruling from the Supreme Court ever, and establishes the "actual malice" standard for defamation of public figures. There's more to it than this, but the ruling basically says that for it to be defamation of a public figure, whoever is making the statement should more or less know that the information they're passing along is false. It's a high standard, but that's in order to protect the 1st Amendment. Unfortunately, Thomas seems to think that it's time to revisit the issue:

We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

Of course, if we go back and "carefully examine the original meaning of the First and Fourteenth" Amendment, it's possible one could conclude that all of defamation law violates the 1st Amendment in suppressing speech (the 14th Amendment part just extends the 1st Amendment restrictions beyond Congress to state laws as well). But still, as we discussed at the time, this was surprising from Thomas, as there seems to be basically no interest anywhere else in revisiting the NYTimes v. Sullivan ruling. It's not like other instances where you have a bunch of people itching to revisit old cases.

The question, then, is whether or not anyone would take up Thomas's publicized desire to revisit this standard. And apparently he's found a taker in... Rep. Devin Nunes. As you'll recall, Devin Nunes has been filing a series of SLAPP suits against the media and his critics. The cases haven't been going well for him at all. A couple of months ago, a judge easily tossed out one of Nunes' cases. This one, filed in Iowa (a state without an anti-SLAPP law) against Esquire magazine and reporter Ryan Lizza over a great article, "Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.

As the judge pointed out, nothing in the complaint alleges anything possibly defamatory.

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

Nunes and his lawyer, Steven Biss, have since appealed that ruling to the 8th Circuit appeals court (first noted by Nunes' hometown Fresno Bee, whose parent company Nunes is suing in a different case). The full appeal is not yet public (for reasons I don't understand it shows in the docket, but is not available to download). What is available, however, is a Designation and Statement of the Issues, which at least details what Nunes will be arguing in the appeal. And the key point? They're attacking the NYT v. Sullivan standard:

1. Did the District Court follow the proper standard in evaluating Nunes’s amended complaint or did the District Court view the amended complaint in a light most favorable to the Defendants?

2. Is New York Times v. Sullivan, 376 U.S. 254 (1964) good law? Does the United States Constitution require public figures to satisfy an actual-malice standard in state-law defamation suits? Should Sullivan be reconsidered and overturned?

3. Did the District Court err in applying Sullivan in this case?

4. Did Nunes plausibly allege that the Defendants published the Article with actual malice?

Those are the first four of 14 issues with the other issues basically saying that even if Lizza's articles don't state any defamatory facts, Nunes wants the court to say that "rhetorical questions" in the article "imply the existence of defamatory facts." All of this seems unlikely to be successful. Extremely unlikely.

In general, courts will avoid dealing with deeper constitutional questions, especially when cases can be dealt with in a more straightforward manner, and this case can be (and was) easily dismissed because nothing in the article is a defamatory statement of fact. And, of course, it's not for an appeals court to tell the Supreme Court that its earlier ruling was "bad law." Of course, the goal here seems to be to get the Supreme Court to revisit NYT v. Sullivan, as Thomas as suggested is necessary. So, chances are they know this is a loser in the appeals court, but are hoping that they can then appeal it to the Supreme Court later. That... also seems unlikely to work. While Thomas has indicated he's interested in revisiting this standard, it would be surprising if any of the other Justices agree. And it seems likely that the entirety of the media industry would blow its lid if this issue was up for revisiting at the Supreme Court.

But, really, this is quite telling. Nunes seems to think that he -- a public elected official -- should not have to face mean comments about himself. That's ridiculous. He's a public official. He should grow a thicker skin, not try to destroy the 1st Amendment because his ego can't take people highlighting his family trying to quietly hide the fact that they moved their farm from California to Iowa.

Filed Under: 1st amendment, 8th circuit, actual malice, clarence thomas, defamation, devin nunes, esquire, free speech, nyt v. sullivan, ryan lizza, steven biss

Administration Officials (Again) Break The Law By Investigating Voice Of America Journalist For 'Anti-Trump Bias'

from the who-needs-the-law-when-you-have-power dept

The President's promise he would "drain the swamp" has gradually materialized over the past four years. The swamp has been drained. And it has been replaced by Trump Swamp™, the finest in DC-area "swamp experiences."

"Draining the swamp" has meant little more than undoing work his predecessor did and stocking his cabinet with a blend of toadies and grifters. The man who appears to believe being elected meant being crowned king has continuously swapped out admin staff when staff members haven't been sufficiently sycophantic.

This new rot is everywhere. And Trump's antagonistic attitude towards any journalism that doesn't skew right has trickled down to the US government's own journalistic outfit, the Voice of America. Late last month, a complaint filed by the agency that oversees VOA -- the US Agency for Global Media (USAGM) -- alleged officials at USAGM were retaliated against for expressing their concerns about the new leadership appointed by President Trump. This complaint suggested Trump's Administration was willing to break the law to root out critics and non-fans of the new boss.

The hits just keep on coming. More allegations are being made about USAGM officials appointed by Trump, who appear to be hunting down journalists Trump doesn't like. David Folkenflik has the details for NPR:

Two political appointees at the federal agency that oversees the Voice of America recently investigated one of its most prominent journalists to make the case he was biased against President Trump.

NPR has learned the appointees compiled an extensive report deemed "confidential" on VOA White House bureau chief Steve Herman, claiming that in his reporting and tweets that Herman had been unfair to Trump and had broken the broadcaster's standards and social media policies. They repeatedly cited a "conflict of interest," based on their conclusions from Herman's social media postings, including his own tweets and his "likes," according to materials reviewed by NPR.

Not only does this seem wrong, but it's actually wrong… as in "against the law." To keep the VOA from becoming a tool for government propaganda, laws were passed to insulate the federally-funded news agency from federal government interference. There's a codified "firewall" that's supposed to prevent VOA from being turned into a federal government propaganda machine by forbidding "any US government official" from interfering with newsgathering or reporting. Targeting a journalist because he has reported unfavorable news about President Trump and Vice President Pence would appear to be a breach of this "firewall."

Questions about this troubling development appear to have resulted in a USAGM scramble, led by none other than CEO Mike Pack, a Trump appointee.

A half hour after NPR sent its request for comment to Pack and his press aides on Sunday afternoon, the CEO issued a new memo to all staff and broadcasters titled "Guidance on Conflicts of Interest" that appears aimed at least in part at Herman. It was dated Friday, Oct. 2, and cited social media posts as one central source of concern "that can only be remedied by recusal." And it offered this example: "[A] journalist who on Facebook 'likes' a comment or political cartoon that aggressively attacks or disparages the President must recuse themselves from covering the President."

Pack appears to be "draining the swamp," much like the President has "drained" his. As NPR reports, under Pack's stated premise of "draining the swamp," he shut down work visas for foreign VOA staffers and began claiming too many VOA journalists were "unfair to conservatives." The targeting of Steve Herman began with stories Pack and his adviser -- former right-wing talk show host and conspiracy theorist Frank Wuco -- appear to have felt just weren't flattering enough.

The investigation of Herman focused in part on two stories from early September. One was headlined Trump Defies North Carolina COVID Guidelines With Large Outdoor Rally. The other, titled 'I Didn't Lie,' Trump Asserts About Seriousness of Coronavirus, followed the president's reactions to audiotapes released by author Bob Woodward's of their conversations from early this year. Both stories closely resembled accounts from other news outlets on the events.

The USAGM may oversee VOA, but its officials are not allowed to breach the "firewall." If there are questions about a journalist's objectivity, it's supposed to be handled in-house by VOA editors and any outside journalists/experts the VOA asks to help ensure its review is handled just as objectively. What isn't supposed to happen is what's happening here: the direct involvement of USAGM's CEO in the investigation of a journalist the Trump appointee thinks isn't sufficiently "objective." And it's just another bit of law-breaking by the "rule of law" administration.

Filed Under: bias, donald trump, free speech, independent journalism, michael pack, steve herman, swamp, usagm, voice of america

Judge Refuses To Dismiss Batch Of Nicholas Sandmann's Media Lawsuits In The Laziest Defamation Ruling I've Ever Seen

from the wait,-really? dept

I am perplexed. Nicholas Sandmann, the Kentucky teenager who had a highly publicized and widely debated encounter in Washington DC is somewhat of a Rorschach Test for how you view the media. There are all sorts of interpretations of his encounter, and all sorts of arguments about the media coverage of that encounter -- and much of it is driven by people's prior beliefs. What should not be controversial, however, is that his ongoing series of SLAPP suits about the media coverage of that encounter are an attack on the 1st Amendment.

We were a bit surprised that (after first having the case thrown out before it was reinstated on very narrow grounds), the Washington Post agreed to settle, as did CNN. Given the basis of the case, and the nature of defamation law, it seemed highly likely that the cases settled for what is known as a "nuisance fee." Less than it would cost to actually bring the case to conclusion, but not a significant amount to either media property. Of course, Sandmann's lawyer has threatened to sue some more journalists and end careers of some who speculated on the nature of the settlements, though as far as I can tell, no such lawsuits have been filed.

That said, there was a long list of other Sandmann lawsuits filed against major media companies for reporting on his DC encounter. All of them are under the same judge, William Bertelsman, and he has now refused to dismiss all of them. The opinions in the cases against the NY Times, ABC News, Rolling Stone and CBS News are all virtually identical.

I will admit that I am perplexed by the judge's reasoning in these cases, which does not seem anything even remotely like any other defamation case I've ever seen. Because the rulings are all pretty similar (with just some slight differences), we'll just go through the ruling against the NY Times and highlight some of the oddities. The judge summarizes the case and then just says "well, I found the statement to be libelous in previous cases, and therefore it is here."

The Complaint is based on the defendant’s news coverage of an event that occurred on January 18, 2019, during a visit by plaintiff Nicholas Sandmann and his fellow Covington Catholic High School students to Washington, D.C.

Greatly summarized, the Complaint alleges that Sandmann was libeled by the defendant when it published a news article stating that Sandmann, while at the Lincoln Memorial, “blocked” Native-American activist Nathan Phillips and “prevented Phillips’ retreat while Nicholas and a mass of other young white boys surrounded, taunted, jeered and physically intimidated Phillips.”....

This news story is alleged to be false and defamatory.... Sandmann further alleges that this publication by defendant and similar stories by other news media caused him to be harassed by the public, causing him great emotional distress..... Sandmann also alleges that defendant’s article “is now forever a part of the historical Internet record and will haunt and taint Nicholas for the remainder of his natural life and impugn his reputation for generations to come.”...

The motion to dismiss argues that this publication is not libelous, but the Court has ruled in companion cases that it is libelous. The Court continues to hold that opinion for the reason stated in such preceding cases. See Sandmann v. The Washington Post, Cov. Case No. 19cv19 (Docs. 47, 64); Sandmann v. Cable News Network, Cov. Case No. 19cv31 (Docs. 43, 44); Sandmann v. NBCUniversal Media, LLC, Cov. Case No. 19cv56 (Doc. 43).

So, there are a bunch of oddities already in here, but I'll just focus on that last paragraph, in which the judge says that "the Court has ruled in companion cases that it is libelous" and then points to those other cases. But, that's not what actually happened. The key case that matters here is the one against the Washington Post. The judge points to two documents in that case: 47 and 64, neither of which have the judge saying that these statements are libelous. In fact, the only thorough analysis of the statements comes in document 47 and it concludes that... what was written by the Washington Post was not libelous. It goes through it all pretty thoroughly and notes that the claims of libel are either protected opinion or not about Sandmann himself.

More to the point, this ruling -- again by the same judge -- says that what constitutes "blocked" is a subjective matter of opinion and thus not defamatory:

This is kind of important, because it's the exact same statement that is the basis of all of these lawsuits that the judge refused to dismiss.

Yet, he says that he found that statement to be defamatory... while pointing to a filing in which he did the opposite. Now, in the later ruling that reinstated a tiny, limited part of the case (filing 64) involving that same statement, the judge says that he will allow for more discovery before deciding on whether or not they're defamatory.

The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff “blocked” Nathan Phillips and “would not allow him to retreat.” Suffice to say that the Court has given this matter careful review and concludes that “justice requires” that discovery be had regarding these statements and their context. The Court will then consider them anew on summary judgment.

The other cases that the judge mentions as proving he found these statements libelous only point back to the Washington Post filing... that again says the opposite. So the judge is basing his ruling on the fact that he already found these statements to be libelous when he didn't actually do that. It's the most bizarre thing I've seen from a federal judge.

From there he goes on to quote the same paragraph (oddly leaving out quotation marks where they obviously belong):

As in other cases, the Complaint herein alleges that the defendant’s article quoted the following statement by Phillips:

It was getting ugly, and I was thinking: I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial, Mr. Phillips told The Post. I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.

The Complaint alleges that this statement was false in that Sandmann did not block Phillips or interfere with him in any way, and that it conveys a defamatory meaning because it imputes to Sandmann racist conduct.

Note that this is again the same statement that the court originally found to be not defamatory and then later said he would allow discovery on, but over which the case settled before going much further. So I'm completely lost as to how the judge can say he already found this to be defamatory.

The parties agree that Kentucky law applies to this case. Under Kentucky law, a writing is defamatory “if it tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or (3) injure him in his business or occupation.”... The allegations of the Complaint fit this definition precisely.

Wait... what? This leaves out more than a few things about defamation under Kentucky Law (and the 1st Amendment). It leaves out that the statements need to be false statements of fact, for example. Statements of opinion cannot be defamatory. That seems, you know, kind of... important?

The judge then rejects the NY Times' citation of another case in the same circuit, saying that that was under Ohio law rather than Kentucky law. But that ruling was using standard 1st Amendment standards for defamation law that still apply in Kentucky. And the reasoning the judge gives makes no sense at all.

In Croce, a newspaper published an article that included unflattering allegations against the plaintiff, a university professor and cancer researcher. The Court held that, in “full context,” a “reasonable reader would interpret the article as a standard piece of investigative journalism” which simply reported “newsworthy allegations with appropriate qualifying language.”

That holding is inapplicable under the allegations of the Complaint here. Defendant published a statement by Phillips that was made after Sandmann had departed for home, a statement to which Sandmann had no opportunity to reply in real time. While Sandmann had such an opportunity later, and such evidence might be admissible to show lack of malice, it is not a defense to the defamatory meaning of Phillips’ original statement itself.

WHAT?!? That's not how defamation law works at all. The question of whether or not someone has the ability to "reply in real time" has nothing to do with the standards for defamation law. Notice that the judge here doesn't cite anything for claiming this. He just... says it. And, again the other case that the NY Times points to is exactly on point, whether it's talking about Kentucky or Ohio. The 1st Amendment still exists. The fact that Phillips said stuff after Sandmann went home is... totally and completely irrelevant.

Also, let's be clear here. This is a case about Phillips' statement that he made to the Washington Post, which were then repeated in the NY Times (attributed to the Post). If this case were against Phillips, you might be able to squint and kinda sorta, but not really, find a way to say that there's an argument here (again, no, not really). If this were the case against the Washington Post, again, you might be able to squint and see that, which is why the allowance for more discovery was made in the first place. But, how does Sandmann's inability to reply to the Washington Post quoting Phillips in real time have anything whatsoever to do with the question of whether or not the NY Times is liable for defamation? It doesn't.

The judge also rejects the Times' statute of limitations claim, which under Kentucky law is one year. The lawsuit was filed 14 months after the incident. The judge says that since Sandmann is a minor, the statute of limitations is effectively extended until he turns 18. The Times argues that at the very least, the statute of limitations should have started ticking when he filed the original lawsuit against the Washington Post, but again the judge just says "nope." Even though the NY Times pointed to previous rulings that agreed with their analysis of the statute of limitations the judge says that the procedural history in that other case was different (he doesn't explain how or why) and that he "does not believe" that the original case the Times point to would be upheld if it were appealed. Which... is a take.

Anyway, this does not mean that Sandmann has yet won. It just means that these cases can move forward. And that's dangerous for a few reasons. I'm not 100% sure, but it's possible that the media defendants won't be able appeal on this point (this gets beyond my knowledge of Kentucky civil procedure -- but some laws allow for "interlocutory appeal" in which you can appeal specific aspects of a ruling, while others want you to wait until the court makes a final ruling on the case before it can go up on appeal). If that's the case then appeals would have to wait until later in the case, after the case has gone on through more expensive stages -- and that means that many of the media companies (and their insurance companies) may feel a lot of pressure to just throw a bit of money at Sandmann to make the case go away for less than it will cost to go through to the next round.

The NY Times has a history of not caving in cases like this, recognizing that it has to set the standard, so I hope it continues fighting. But it would not surprise me to see some of the other media companies also do "confidential settlements" that many people will judge as some huge victory for Sandmann.

All in all this is a very, very, very odd ruling that does not fit with any other defamation case I've seen, appears to go against plenty of precedent and, most bizarrely, has the judge citing his own rulings in a different case that say the exact opposite of what he claims it says in this case.

Filed Under: 1st amendment, anti-slapp, defamation, free speech, kentucky, motion to dismiss, nicholas sandmann, slapp, william bertelsman
Companies: abc news, cbs news, ny times, rolling stone

Trump Still Hates The 1st Amendment: Meeting With State Attorneys General To Tell Them To Investigate Internet Companies For Bias

from the oh-come-on dept

It never, ever ends. President Trump is continuing his war on Section 230 and the right for the open internet to exist. The latest is that he's meeting with various state Attorneys General to encourage them to bring investigations against internet websites over "anti-conservative bias" despite the fact that no one has shown any actual evidence of anti-conservative bias beyond assholes, trolls, and literal Nazis upset that they got banned.

The Trump administration is expected to urge Republican state attorneys general on Wednesday to investigate social-media sites over allegations they censor conservatives online, escalating the White House’s war with Silicon Valley at a time when tech giants are increasingly taking action against the president’s most controversial posts.

A different report notes that Trump and the DOJ are also planning to talk with them about "revising" Section 230:

U.S. President Donald Trump plans to meet on Wednesday with a group of Republican state attorneys general about revising a key law that shields social media companies from liability for content posted by their users and allows them to remove lawful but objectionable posts.

“Online censorship goes far beyond the issue of free speech, it’s also one of protecting consumers and ensuring they are informed of their rights and resources to fight back under the law,” White House spokesman Judd Deere said. “State attorneys general are on the front lines of this issue and President Trump wants to hear their perspectives.”

Of course, the State AGs would need a big change to Section 230 to be able to go after social media for bias -- but they'd need an even bigger change to the 1st Amendment, which allows companies to choose which content to host -- and what content not to host. If Trump and the DOJ think that law enforcement can investigate social media for anti-conservative bias, does that mean he'd be okay if AGs in other states investigate Fox News for bias? Or Breitbart? Of course not. The 1st Amendment doesn't allow it, and so we get another stupid culture war from the President shitting on the Constitution he swore to uphold and protect.

In reality, this is all just more posturing. State AGs (of both parties) have long hated Section 230 because it removes a tool for their ridiculous grandstanding to help them get elected to higher office (look at how many state AGs go on to be Governor or Senator). For the better part of a decade, State AGs have been asking to change 230 because, while Section 230 has an exemption for federal criminal law, it does not for state criminal law. That means State AGs are less able to go after social media companies. But, boy do they want to.

Pretty much every internet company, upon getting popular, has gone through an attack from State AGs, that was not based on any legitimate purpose but to get the state AGs in the headlines to claim that they were "protecting the citizens of our fine state" or some other nonsense. Almost exactly 10 years ago, we highlighted what then Topix CEO, Chris Tolles, went through in dealing with state AGs. They put out a press release threatening Topix for how the company moderated user comments.

Tolles did what he thought was the right thing. He sat down with the various AGs who had signed onto the press release, and explained to them the ins-and-outs of content moderation and why Topix made the choices it did. All of those choices, of course, were protected by Section 230 and the 1st Amendment. But, the AGs did not care. They took what Tolles told them, and put out an even more ridiculous press release, misrepresenting nearly everything he told them, and again "threatening" to do something.

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That's right. Another press release. This time from 23 states' Attorney's General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn't like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and "immediately revamp our AI technology to block more violative posts" amongst other things.

AGs have been doing this for years (across both parties). The attack on Topix was done by then Kentucky AG, Jack Conway. We've covered similar attacks from then Connecticut AG Richard Blumenthal, then South Carolina AG Henry McMaster, then New York AG Andrew Cuomo, then California AG Kamala Harris, then Mississippi AG Jim Hood, current Louisiana AG Jeff Landry and many, many more.

So of course AGs (of either party) are going to tell the President they need Section 230 reformed -- and that plays straight into the President's dimwitted playbook of wanting to harass companies he feels (wrongly) are "against" him. The reform the AGs want is to remove the state criminal law exemption, which will give them significantly more power to attack internet companies and demand ridiculous concessions that don't serve the public benefit, but do serve to keep the AGs in the headlines for "taking on big tech" and "protecting the children" and other similar nonsense. The reform the President wants is anything that lets him drum up a new bullshit culture war and play the crybaby victim about how big tech is "against" him, even as Facebook and Twitter have been two of the biggest tools to make his short political career viable.

It's nonsense, but a politically convenient nonsense for the President right now...

Filed Under: 1st amendment, anti-conservative bias, bias, donald trump, section 230, state attorneys general

Court Rejects Clearview's First Amendment, Section 230 Immunity Arguments

from the don't-allow-a-bad-company-to-generate-bad-courtroom-precedent-though dept

Back in March, facial recognition tech upstart Clearview was sued by the Vermont Attorney General. The AG alleged Clearview's scraping of sites to harvest photos (and other biometric/personal info) of Vermont residents violated state privacy laws. It also alleged Clearview had mislead residents and customers about the company's intended uses and its success in the law enforcement marketplace.

Clearview's response to the lawsuit was… interesting. It tried to invoke Section 230 immunity, claiming it was nothing more than a host for third-party content. The problem with this argument was it wasn't being sued over the content itself (which wasn't defamatory, etc.) but over its collection of the content, which did not provide Vermont residents with notice their information was being collected and gave them no way to opt out.

The company then hired a prominent (but opportunistic) First Amendment lawyer to argue it had a First Amendment right to collect and disseminate this information, even when its collection efforts routinely violated the terms of service of nearly every site it scraped to obtain photos. This argument was also interesting in its own way, but had the potential to cause complications for plenty of entities not nearly as universally-reviled as Clearview. In some ways, Clearview is the Google of faces, gathering information from all over the web and delivering search results to Clearview users.

The Vermont court has finally weighed in [PDF] on Clearview's arguments. And it doesn't like most of them. (h/t Eric Goldman)

Here's the court's take on the Section 230 argument:

Importantly, the basis for the State’s claims is not merely the photographs provided by third—party individuals and entities, or that Clearview makes those photographs available to its consumers. Instead, the claims are based on the means by which Clearview acquired the photographs, its use of facial recognition technology to allow its users to easily identify random individuals from photographs, and its allegedly deceptive statements regarding its product… This is not simply a case of Clearview republishing offensive photographs provided by someone else, and the State seeking liability because those photographs are offensive. Indeed, whether the photographs themselves are offensive or defamatory is immaterial to the State’s claims.

Instead, the claims here attempt to hold Clearview “accountable for its own unfair or deceptive acts or practices,” such as screen—scraping photographs Without the owners’ consent and in Violation of the source’s terms of service, providing inadequate data security for consumers’ data, applying facial recognition technology to allow others to easily identify persons in the photographs, and making material false or misleading statements about its product.

So, no dismissal based on Section 230 immunity for Clearview. The court then tackles the First Amendment assertions. The court says the First Amendment does not cover the commercial speech targeted by the AG's lawsuit.

The court next observes that at least some of the conduct alleged in Counts and III is largely nonexpressive in nature. The allegations that Clearview provided inadequate data security and exposed consumers’ information to theft, security breaches, and surveillance lack a communicative element. The First Amendment does not protect such conduct.

Whether the software itself is covered by the First Amendment is more difficult to answer.

Because the Clearview app’s raw code is not at issue here as in Corley, the app arguably has no expressive speech component and is more similar to the “entirely mechanical” automatic trading system in Vartuli that “induce[d] action without the intercession of the mind or the will of the recipient.” Vartuli, 228 F.3d at 111. The user simply inputs a photograph of a person, and the app automatically displays other photographs of that person with no further interaction required from the human user. In that sense, the app might not be entitled to any First Amendment protection. Complicating matters, however, is the fact that Clearview’s app is similar to a search engine, and some courts have generally recognized First Amendment protection for search engines, at least to the extent that the display and order of search results involve a degree of editorial discretion.

Whether or not it's actually speech doesn't appear to matter, at least not to this court. It says the "speech" -- protected or not -- can be regulated by the Vermont government. Since the AG isn't suing over the content of the "speech" itself but rather the use of personal information gathered from Vermont residents, the lawsuit against Clearview can continue.

Presumably, the State has no problem with Clearview operating its app so long as the Vermonters depicted in its photograph database have fully consented. The regulation sought by the State here is content-neutral and, accordingly, subject to intermediate scrutiny.

But then the court goes on to say that even if this violates Clearview's First Amendment rights, it barely violates them.

Furthermore, any incidental restriction on speech imposed by the State’s action would not burden substantially more speech than is necessary to further the State’s interest in protecting privacy. The State estimates that the reliefit requests will leave more than 99 percent of Clearview’s database intact.

That's a little more problematic. The court does go on to state that Clearview could avoid this by seeking affirmative consent from Vermont residents. It also says the court would ensure that any regulation proposed by the state would be subjected to further scrutiny to ensure the burden on Clearview is minimal. But that seems unlikely to be true if the court already believes burdensome regulation would only result in a 1% reduction in free speech.

The court also upholds all the deceptive claims allegations. Clearview's marketing has been far from honest. It has touted law enforcement successes that have been directly contradicted by the named law enforcement agencies. It has told people they can ask to be removed from its database, but then says that's only subject to laws that aren't in force in most of the nation. It has also claimed its only for legitimate law enforcement use, but has sold the software to a number of private entities and encouraged law enforcement officers to "run wild" while testing the app using faces of friends and family members. All of these claims survive.

The longer Clearview exists, the more lawsuits it will face. Its collection method -- scraping sites to obtain personal data -- is already problematic. The tech itself remains unproven, having never been tested for accuracy by an independent outside agency. If this is the best it can do in its own defense, it's going to run itself out of money before it secures any favorable precedent.

Filed Under: 1st amendment, facial recognition, section 230
Companies: clearview, clearview ai

Judge Issues Preliminary Injunction Saying That The US Cannot Block WeChat, Says The Ban Raises 1st Amendment Concerns

from the good-to-see dept

While much of the news this weekend with regards to the President's plans to block Chinese messaging apps focused on the fake "deal" to avert a TikTok ban, things didn't go the President's way on his other planned ban. As you may recall, along with TikTok, Trump issued an executive order to ban WeChat, the very popular Chinese social network/messaging/everything app. Last week, we noted that a bunch of WeChat users in the US were trying to get an injunction to block the ban, as the Commerce Department's details about the ban proved that its stated goal of protecting Americans was nonsense.

The court held a hearing over the weekend (after also holding hearings on Thursday and Friday) and quickly issued a preliminary injunction, blocking the Commerce Department from putting the WeChat ban in place. As the judge rightly notes, there are significant 1st Amendment concerns with the ban. Basically, the court says that the WeChat users have rightly shown that banning the app likely violates the 1st Amendment and creates prior restraint:

On this record, the plaintiffs have shown serious questions going to the merits of their First Amendment claim that the Secretary’s prohibited transactions effectively eliminate the plaintiffs’ key platform for communication, slow or eliminate discourse, and are the equivalent of censorship of speech or a prior restraint on it.... The government — while recognizing that foreclosing “‘an entire medium of public expression’” is constitutionally problematic — makes the pragmatic argument that other substitute social-media apps permit communication. But the plaintiffs establish through declarations that there are no viable substitute platforms or apps for the Chinese-speaking and Chinese-American community. The government counters that shutting down WeChat does not foreclose communications for the plaintiffs, pointing to several declarations showing the plaintiffs’ efforts to switch to new platforms or apps. But the plaintiffs’ evidence reflects that WeChat is effectively the only means of communication for many in the community, not only because China bans other apps, but also because Chinese speakers with limited English proficiency have no options other than WeChat.

The plaintiffs also have shown serious questions going to the merits of the First Amendment claim even if — as the government contends — the Secretary’s identification of prohibited transactions (1) is a content-neutral regulation, (2) does not reflect the government’s preference or aversion to the speech, and (3) is subject to intermediate scrutiny. A content-neutral, time-placeor- manner restriction survives intermediate scrutiny if it (1) is narrowly tailored, (2) serves a significant governmental interest unrelated to the content of the speech, and (3) leaves open adequate channels for communication.... To be narrowly tailored, the restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.”... Unlike a content-based restriction of speech, it “need not be the least restrictive or least intrusive means of serving the governments interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not advance its goals.”...

As for the supposed "national security" interests of the US government? The court says "yes, if only the DOJ shared any details."

Certainly the government’s overarching national-security interest is significant. But on this record — while the government has established that China’s activities raise significant nationalsecurity concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns. And, as the plaintiffs point out, there are obvious alternatives to a complete ban, such as barring WeChat from government devices, as Australia has done, or taking other steps to address data security.

The court did not go into the various other claims by the plaintiffs, though if the case continues they'll come up later. However, in closing out the ruling, the judge uses the President's own words in the executive order against him. After the DOJ told the court that the WeChat ban was important for human rights because China heavily censors communications on WeChat... the judge more or less says "um, isn't that what you're now trying to do?" and points to the President's own words about free speech in this very executive order:

Finally, at the hearing, the government cited a Washington Post article contending that a ban of WeChat is a net positive for human rights: “WeChat it is a closed system that keeps its 1.2 billion users in a parallel universe where they can communicate as long as they don’t cross the lines, and banning it might eventually strengthen the voices of the Chinese diaspora.” This is another important point: the federal government — based on its foreign-policy and national security interests —may not want to countenance (or reward) the Chinese government’s banning apps outside of the Chinese government’s control and, more generally, censoring or punishing free speech in China or abroad. But as the President said recently in Executive Order 13925,

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people.

...

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans [including the plaintiffs and others in the U.S. WeChat community] follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.

End result: the court puts a nationwide injunction saying that the Commerce Department cannot implement the WeChat ban it described last week.

Filed Under: 1st amendment, ban, china, donald trump, executive order, free speech, injunction, prior restraint
Companies: tencent, wechat

Experts Say Internet Shutdowns Don't Thwart Protests

from the the-last-refuge-of-simple-minds dept

Like so many authoritarians, Belarus "President" Alexander Lukashenko has taken to violence, intimidation, and censorship in a ham-fisted bid to stifle those critical of his dubious election win. On the technology side, that has involved hiring U.S. network gear maker Sandvine to help the country block citizens' access to the broader internet. During August's contested election, citizens found their access to social media outlets like Twitter and Facebook prohibited thanks to Sandvine and the Belarusian government, which originally tried to claim that the blockade was the result of a cyberattack. News outlets like CNN and the BBC, and search engines like Google, were also blocked.

Aside from being harmful, there's increasing evidence that this kind of censorship simply doesn't work. A recent study in the International Journal of Communications took a closer look at what happened to protest movements in African countries when governments attempted massive censorship of the internet, and it found that while there wasn't evidence that such shutdowns drove greater unrest, there also was no evidence such behavior thwarted protests:

"For example, a social media blackout in Ethiopia in December 2017 “completely failed” to suppress protests caused by ethnic tensions in part of the country, the authors wrote. There was actually a surge in clashes during the shutdown itself. The study used data on the locations of protests and whether they were considered violent or not, but the researchers didn’t have access to detailed information on the number of demonstrators present or what form their online activity had taken prior to the internet shutdown or social media blackout.

Experts have been quick to note such censorship doesn't magically thwart the underlying grievances driving the protests, and creative protesters are likely to develop tools to bypass internet lockdowns anyway. In Belarus and countless other areas users most frequently simply migrate to VPNs to dodge the watchful eye of governments and their private sector allies like Sandvine (which, you'll recall, played a starring role in the early days of the net neutrality fights here in the States).

At the end of the day, experts are clear that internet crackdowns are the last resort of cowardly authoritarians, whose last option is to try and drive further unrest in the hopes it somehow plays into their hands:

"It’s often as a “last resort tactic” says Joss Wright, senior research fellow at the Oxford Internet Institute. But the strategy is also a crude one, he adds, noting that it can result in the spread of rumours and misinformation through other channels—with unpredictable consequences. Rydzak agrees: “It’s about creating an atmosphere of fear and uncertainty.” As a blunt demonstration of power, he adds, shutdowns may heighten the overall sense of chaos in a country or locality, creating a fluid situation that authorities may hope ultimately plays into their hands."

Except, again, there's no indication that's actually a successful tactic.

Filed Under: alexander lukashenko, belarus, free speech, internet shutdowns, protests
Companies: sandvine

Alan Dershowitz Files SLAPP Suit Against CNN; Says Not Airing More Of What He Said Is Defamation

from the not-how-it-works-dersh dept

Famed law professor Alan Dershowitz is at it again. He's now suing CNN for defamation in a SLAPP suit, because he's upset that CNN did not provide an entire quote he made during the impeachment trial before the US Senate, claiming that because he was quoted out of context, it resulted in people believing something different than what he actually meant with a quote. Reading the lawsuit, the argument is not all that different from the defamation claim made by another Harvard Law professor, Larry Lessig, earlier this year, in which he accused the NY Times and a reporter there of defamation for taking his comments out of context. Lessig later dropped that lawsuit.

In both cases, these law professors are effectively arguing that when they make convoluted arguments, you must include all of the nuances and context, or you might face defamation claims. That's incredibly chilling to free speech, and not how defamation law works. Dershowitz's complaint is that during the trial, he made the following claim:

“The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal. Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn’t been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."

Dershowitz is upset that CNN aired a segment that showed just that final sentence:

Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

But here's the thing: CNN also did air the full segment. And Dershowitz admits this. He's just upset that at other times they only aired part of it, and that some commentators don't paraphrase it the way he wanted them to. Here's where he admits that CNN did, in fact, air the entire clip:

Immediately after Professor Dershowitz presented his argument, CNN employees, Wolf Blitzer and Jake Tapper, played the entire clip properly, so CNN knew for certain that Professor Dershowitz had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act. That portion then disappeared in subsequent programming.

It disappeared because the longer quote is long, and people were focused on the key part -- that final sentence. Many people -- including some on CNN -- mocked Dershowitz for those remarks. Because they're ludicrous. Even with the full paragraph. But the mockable part is the final sentence, and that's why it's news. And the CNN commentators who mocked it were commentators -- people paid to give their opinion on what Dershowitz said.

But, as with Lessig's lawsuit, the complaint from Dershowitz is that commentator's opinions about what was said differs from what was meant. But opinions cannot be defamatory. And if people misinterpreted what Dershowitz said, that's on Dershowitz for not explaining it clearly enough. We're in a world of trouble if people get to sue for defamation every time someone misunderstands their poorly made argument.

I can understand why it's frustrating for people to completely misunderstand your argument. It happens all the time to lots of people -- including myself. It happens quite often when people try to make carefully nuanced arguments. But misunderstanding, or even misrepresenting, a more nuanced argument is not defamation. And nothing in Dershwotiz's lawsuit changes that.

Dershowitz's lawsuit hangs its hat on the Masson v. New Yorker Supreme Court ruling from 1991. Dershowitz's complaint describes that ruling as follows:

... the Court held that a media organization can be held liable for damages when it engages in conduct that changes the meaning of what a public figure has actually said. While Masson involved the use of quotation marks to falsely attribute words to Jeffrey Masson, the law that the case created is broad, and unequivocally denies first amendment protections to a media organization that takes deliberate and malicious steps to change the meaning of what a public figure has said. That is exactly what CNN did when it knowingly omitted the portion of Professor Dershowitz’s words that preceded the clip it played time and time again.

This is... not an accurate portrayal of the Masson case or ruling. And, yes, I recognize that there's some irony in Dershowitz claiming its defamation to misrepresent himself while his lawsuit then misrepresents a key Supreme Court case that it relies on. The Masson case is a fun one to read. In involves an article (and then a book made out of the article) about an academic where it appears that the author didn't just selectively quote the academic, but made up quotes. The ruling compares the quotes in the article to the tape recordings of interviews to note just how different the quotes in the story are from what was actually said. That's... not what is happening here. It is true that one of the quotes in the Masson case involved selectively excising some of a quote, but that was done in a truly egregious way. It wasn't that they left out context, it was that they excised a middle portion, to make a later portion appear that it was referring to something much earlier, rather than what was excised.

That is... not what happened to Dershowitz. Indeed, the Masson ruling works against Dershowitz in many ways. It actually says that you have to expect the press to take your long rambling comments and tighten them up, because that's part of journalism:

Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker's perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker's meaning, for example, where that meaning turns upon a speaker's emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker's words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word.

In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff's reputation by a statement that is defamatory and false.

In the Masson case, the Court did find that many of the changes to the text, including that one section, involved a "material" difference in meaning, and therefore could be found defamatory by a jury. But this case is very, very different than what Dershowitz is claiming about CNN. They didn't quote his whole line, but there is no requirement they quote his entire argument.

Then there's the whole damages bit. According to Dershowitz, his reputation was damaged to the tune of $300 million because some people made fun of him on CNN, and it's all their fault that they didn't understand his poorly made argument. The fucking entitlement of this guy.

The damage to Professor Dershowitz’s reputation does not have to be imagined. He was openly mocked by most of the top national talk show hosts and the comments below CNN’s videos show a general public that has concluded that Professor Dershowitz had lost his mind.

Being mocked on TV is proof of damages? Really, now? How fragile is Dersh's ego here? Multiple times in the lawsuit, Dershowitz's lawyer (yes, he found an actual Florida man lawyer to file this lawsuit) talks about how only playing part of his long silly answer would lead people to believe that Dersh had "lost his mind":

The very notion of that was preposterous and foolish on its face, and that was the point: to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind. With that branding, Professor Dershowitz’s sound and meritorious arguments would then be drowned under a sea of repeated lies.

If only airing one sentence of your preposterous argument makes you look like you've lost your mind, perhaps the problem is in how you frame your arguments.

This is yet another SLAPP suit. Florida has an anti-SLAPP law, but it's a mixed bag in terms of how strong it is. Of course, as with many SLAPP suits, the real goal is likely to just be intimidation, rather than to actually win a vexatious nonsense lawsuit.

Filed Under: 1st amendment, alan dershowitz, anti-slapp, context, defamation, florida, free speech, slapp, slapp suit
Companies: cnn

Human Rights Organization Issues Press Freedom Alert Over UK Government's Refusal To Speak To Critical Journalists

from the skin-so-thin-these-days dept

The UK government is fine with press freedom as long as the press confines itself to the unwritten guidelines the government uses to restrict it. Publish too many leaked documents? Well, the government will show up and destroy your computer equipment. Report on the wrong stuff? The government will kick you out of Parliament and tell you not to talk about why you've been kicked out. Publish names of people targeted by UK government investigations in the Land of the First Amendment and across the pond from the UK? Expect a UK court to issue a ruling telling you to abide by laws that don't govern the country you're actually publishing in.

The UK government is again stepping on free press toes. And human rights organizations have noticed. Independent journalism outfit Declassified UK was recently told its journalistic services were no longer required… or would at least no longer be respected by the Ministry of Defence.

The UK government has been formally warned for threatening press freedom after it blacklisted a group of investigative journalists and denied them access to information.

The Council of Europe issued the Level 2 "media freedom alert" after Ministry of Defence press officers refused to deal with Declassified UK, a website focusing on foreign and defence policy stories.

As the Independent reports, this aligns the UK government with Russia and Turkey, which received similar alerts recently for, respectively, beating and jailing journalists critical of their governments.

Here's the chain of events that led to the Level 2 alert, as reported by Marcela Kunova of journalism.co.uk.

On 25 August, Declassify UK journalist Phil Miller contacted the MoD’s press office to request a comment about the arrest of Ahmed al Babati, a serving soldier, near Downing Street for protesting the United Kingdom’s involvement in Saudi Arabia’s bombing of Yemen.

Miller was promised information at first but the press office later called him to enquire about the publication’s editorial coverage of the conflict.

"What sort of angle have you taken on the war in Yemen?” the MoD spokesperson asked.

[...]

Not long after, Miller received an email telling him that the MoD was not going to send him anything that day, but that he should "submit an FOI [Freedom of Information request] for anything that you require".

[...]

When Miller enquired with his contact at the press office, he was told: "My understanding from the office is that we no longer deal with your publication."

Declassified UK feels this blacklisting is the result of its earlier reporting on questionable Ministry of Defence activities, like training Saudi pilots who were involved with bombings of civilians in Yemen.

It's not just the Council of Europe that's noticed the UK government's decision to refuse to respond to journalists it apparently doesn't care for. The International Press Institute has sent a letter to MoD officials criticizing the agency for its actions.

It goes without saying that the exclusion of a media publication by a government ministry due to its investigative reporting would undermine press freedom and set a worrying precedent for other journalists whose job it is to report in the public interest on the British military.

Criticism should be no reason to discriminate against a media publication. In contrast, tough journalism by outlets such as Declassified UK on matters such as the UK’s foreign and military affairs, uncomfortable though it often may be for those in power, is crucial for a transparent and functioning democracy.

The letter also asks for "clarification" on the decision by the MoD's press office. Presumably, no explanation will be provided. If anything, the MoD will just go back to handing out "no comments" to Declassified UK, rather than call any more attention to itself by cutting the independent journalists out of the minimal info loop.

But, for now, the MoD has aligned itself with Russia and Turkey. It may not be demanding the jailing/beating of critics (at least, not out loud), but it's shown it's unwilling to handle criticism like a free world government agency.

Filed Under: blacklisting, free speech, freedom of speech, press freedom, uk
Companies: declassify uk

French Government To Make Insulting Mayors A Criminal Offense

from the we-love-free-speech-but-[unrolls-growing-list-of-exceptions] dept

French government entities continue to clamp down on speech. Following a terrorist attack on a French satirical newspaper, government leaders vowed to double down on protecting controversial speech. The govenment then fast-tracked several prosecutions under its anti-terrorism laws, which included arresting a comedian for posting some anti-semitic content. It further celebrated its embrace of free speech by arresting a man for mocking the death of three police officers.

A half-decade later, that same commitment to protecting speech no one might object to continues. The country's government passed a terrible hate speech law that would have allowed law enforcement to decide what content was acceptable (and what was arrestable.) Fortunately for its citizens, the country's Constitutional Court decided the law was unlawful and struck down most of it roughly a month later.

But that's not the end of bad speech laws in France. Government officials seem to have an unlimited amount of bad ideas. Some government officials are being hit with far more than objectionable words. Assaults of French mayors continue to occur at the rate of about once a day. Mayors assaulted and unassaulted have asked the French government to do more to protect them from these literal attacks.

The government has responded. And it's not going to make mayors any more popular or make them less likely to be physically attacked.

Any insult targeted at a French mayor will now be treated as contempt - an offence that carries a maximum penalty of community service or a €7,500 fine - France's justice minister has announced.

“Any attack perpetuated against a mayor is an attack perpetuated against the Republic”, warned French Minister of Justice Eric Dupond-Moretti on Wednesday after a ministerial meeting to which local mayor associations were invited, according to BFMTV.

Assault is already a crime, so the government has ways to deal with those who physically attack government officials. This new wrinkle makes being mean to them a crime. The Republic as a whole will feel every insult targeting a town mayor. So will the people uttering the insults. $7,500 fines and/or 280 hours of community service await those who like to fight with their words, rather than their fists.

This may trim down the number of public insults but it's hardly going to make the government any more popular with the governed. If French citizens are physically attacking mayors 300+ times a year, there's something more going on that just a little bit of assholishness that's gotten out of hand. Protecting people from violence is something any government should do. But protecting them from being insulted is something only authoritarians do.

Filed Under: france, free speech, insults, mayors, politics