Trump Gets Mad That Twitter Won't Take Down A Parody Of Mitch McConnell; Demands Unconstitutional Laws

from the bringing-free-speech-back? dept

I'm still perplexed by Trumpian folks insisting that the President is a supporter of free speech (or the Constitution). It's quite clear that he's been a huge supporter of censorship over the years. The latest example is, perhaps, the most bizarre (while also being totally par for the course with regards to this President). For unclear reasons, the President has retweeted someone with fewer than 200 followers, who posted a picture of Senate Majority Leader Mitch McConnell in traditional Russian soldier garb... while complaining that Twitter won't take that image down, while it has "taken down" manipulated media from his supporters.

The tweet says:

Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true? Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!

He then tags two Republican Senators who have spent years pushing bullshit bills and making misleading arguments about how evil certain internet companies are.

There are so many things wrong with this one tweet, I feel it's best to number them:

1. First of all, content moderation at scale is impossible to do well, so it never is reasonable to use a single anecdote to prove bias or to claim that Twitter is somehow doing something wrong. And that's even if this image should have been taken down, which it should not have.
2. Next, this is just parody. And it's obvious parody (except, I guess to our humorless President). There's no reason to take down parody.
3. Twitter isn't taking down "Republican/Conservative pictures and statements that are true." They are taking down or putting warnings on manipulated media that has been posted with the intent to mislead. No one is going to look at the picture of McConnell and think it's proof that he really is doing Putin's bidding.
4. And, what "Republican/Conservative pictures and statements that are true" has Twitter actually taken down?
5. Repealing Section 230 would make this situation worse for Trump and his fans, not better. If Twitter was likely to face lawsuits for tweets that infringe upon rights, then it has much stronger incentive to take down the kinds of defamatory, bogus tweets that Trump and his fans like to put up regularly.
6. And it would still have no reason to take down a parody image like the one Trump is tweeting.
7. Even if Twitter was choosing to take down content from Trump fans and allowing content from his critics to stay up that's perfectly legal (and, again, there remains no evidence to support this claim). There is nothing against the law about being politically biased. If there were, then Fox News, Breitbart, OANN and others would be in a deep pile of shit. Yet, somehow all the "social media is biased!" folks never seem to address any of that.
8. Bonus round: Because of Trump's continued unwillingness to understand the Streisand Effect, he just gave this image that very few people saw, a massive boost in attention. For what?

Hawley doesn't say which of his many, many anti-Section 230 bills he's talking about, but in saying that it's the bill that would "permit individuals unfairly censored by #BigTech to sue!" he likely means this particularly unconstitutional pile of garbage. Even if the bill somehow passed (and it won't) both Houses of Congress and somehow wasn't judged unconstitutional (it would be), it still wouldn't do what Hawley and Trump seem to want it to do.

Without Section 230 protections Twitter would be much quicker to take down this kind of nonsense to avoid liability. It wouldn't magically decide to keep up Trumpian propaganda that might get it sued. We already know this is true because we see it in the copyright space. In copyright, there is much more liability for leaving infringing content up, because of the DMCA 512 safe harbors not being nearly as broad as Section 230's immunity provision. And, because of that, we've seen Twitter take down infringing content from Trump and his fans much more frequently than they take down (or label) other content. Because the lack of a liability shield means that Twitter would have more pressure to take this content down.

It's difficult to believe that someone like Josh Hawley doesn't know this. But Josh Hawley -- the very definition of the elite -- has made his reputation by lying to stupid people, while pretending to be against the elite. And so he knows that this bill can't pass and that it's unconstitutional, and that it would do the opposite of what he claims. But he seems to be betting on stupid people buying into this latest culture war.

Filed Under: 1st amendment, donald trump, free speech, josh hawley, mitch mcconnell, section 230, social media
Companies: twitter

Tinpot Administration Is Apparently 'Building Dossiers' On Journalists Who Criticize Trump

from the referred-to-the-House-Committee-on-Unamerican-Activities dept

President Trump openly admires authoritarians. It appears he believes he was being elected dictator rather than president, and has been openly bitter about his perceived lack of power ever since. The world leaders he enjoys talking to most -- Vladimir Putin, Mohammad bin Salman, Recep Erdogan -- are all notorious thugs who punish critics, dissidents, and anyone else who steps a little out of line.

Trump envies that power. He spends most of his phone time trying to impress a collection of international asshats. And he embarrasses himself (and us by proxy) when speaking about his favorite shitheels in public. Just recently, Trump spent part of his meeting with an American pastor recently freed from a Turkish prison praising the man who had put him there.

"I have to say that, to me, President Erdoğan was very good," Trump told [jailed pastor Andrew] Brunson. "And I know they had you scheduled for a long time, and you were a very innocent person, and he ultimately, after we had a few conversations, he agreed. So we appreciate that, and we appreciate the people of Turkey."

Like Erdogan, Trump appreciates at least one person in Turkey: Recep Erdogan. Those two are aligned there. They're also aligned in their desire to punish their critics, even as they preside over countries that have enshrined free speech and freedom of the press. (Yes, even Turkey has a Constitution that name-checks freedom of expression. It has been ignored for decades.)

In Turkey, this hallowed right has been hollowed out, moving Turkey to the top of the "Most Journalists Jailed" list. Here in the United States, we're not quite up to jailing journalists. But we are placing them under surveillance. And in the latest free speech chilling news emerging from the Trump administration, the White House is building an "ENEMIES" list filled with journalists.

In a statement, White House spokesperson Judd Deere accused The Washington Post of "blatantly interfering with the business relationships of the Trump Organization" and demanded "it must stop."

"Please be advised that we are building up a very large 'dossier' on the many false David Fahrenthold and others stories as they are a disgrace to journalism and the American people," Deere said.

This was unveiled in Farenthold's latest piece for the Washington Post, exposing the funneling of federal tax dollars to Trump's Mar-a-Lago resort and other properties -- places where the president spends an inordinate amount of time. According to Farenthold's report, at least $900,000 in taxpayer funds have been spent at Trump businesses, much of it for the Secret Service agents who must accompany Trump wherever he goes. Trump heads to his own properties when away from the White House. And he does this frequently: 271 times since he took office, according to this report. It's a wonder the price tag isn't even higher, considering the Trump Organization tacks on things like daily "resort fees" and $1,300 "furniture removal charges" to the bills taxpayers are footing,

The White House -- which should be fully separated from Trump's personal business ventures (as Trump promised to do shortly after being elected) -- is targeting journalists for digging into the Trump Organization and its federal "guests." It's not a jailing but it's a still a threat -- one that seems completely out of place in the Land of the Free where speaking about political issues is at the top of the list of things protected by the First Amendment.

It appears Trump regrets taking the top job in a nation that shields his worst enemies from government censorship and prosecution. But there's nothing preventing him from making them miserable. And when you're someone who appears indifferent to everything -- including bad optics -- why not compile a bunch of info White House officials can hate read whenever they feel "oppressed" by the people they serve.

Filed Under: 1st amendment, authoritarian, david farenthold, donald trump, dossiers, free speech, journalists, recep tayyip erdogan
Companies: washington post

Appeals Court: City Employee's Horrific Facebook Posts About Tamir Rice Shooting Were Likely Protected Speech

from the just-because-it's-protected-doesn't-mean-it's-good dept

Just your periodic reminder that the First Amendment protects some pretty hideous speech. And it does so even when uttered by public servants. Caveats apply, but the Sixth Circuit Court of Appeals [PDF] has overturned a lower court dismissal of a Cleveland EMS captain, who made the following comment several months after Cleveland police officers killed 12-year-old Tamir Rice as he played with a toy gun in a local park.

Let me be the first on record to have the balls to say Tamir Rice should have been shot and I am glad he is dead. I wish I was in the park that day as he terrorized innocent patrons by pointing a gun at them walking around acting bad. I am upset I did not get the chance to kill the criminal fucker.

Former EMS Captain James Marquardt appears to be a pretty awful person. And he seems to espouse views very few people would support. But he's still allowed to do this, even as a city employee. Here are some of the caveats leading the Appeals Court to its conclusion:

The Facebook posts, all agree, did not identify Marquardt as a City employee, nor were they made during work hours. Nor would one likely dispute their controversial nature. The posts related to an incident that made local and national headlines: the shooting death of Tamir Rice.

Marquardt removed the post shortly after he -- or someone else (he claims someone with access to his phone made the post while he slept) -- made it but it was too late. His Facebook post became a hot conversational topic at the EMS unit and he was fired two weeks later for violating city policies with his rant about Tamir Rice.

Marquardt sued, claiming this was unlawful retaliation against his protected speech. The lower court declared the post did not deal with an issue of public concern, therefore it wasn't protected. The Appeals Court disagrees.

The ensuing posts on Marquardt’s Facebook page made certain assertions about the well-documented shooting that plausibly relate to the officers’ handling of the encounter and the resulting community reaction. In the posts, the author seems to assert that Rice’s shooting was justified because he was “terroriz[ing]” people by pointing a gun at them. The posts also assert that Rice, due to his conduct at the time of the killing, should not be viewed as a hero by Clevelanders. Given the widespread local and national scrutiny of the Rice shooting, these aspects of the posts directly relate to a “subject of general interest and of value and concern to the public.”

The First Amendment covers even the worst reactions to events of public interest. Marquardt's posts were incendiary and all-around horrific, but the court has seen worse and still found in favor of plaintiffs' First Amendment rights.

True, these details, which reflect (per the district court) “the author’s desire to kill a twelve-year-old boy,” as well as the author’s “joy that [Rice] is already dead,” might not strike one as matters of public concern. Yet these disturbing first-person sentiments do not, as a matter of law, alter the broader subject of the speech or transform it into a “personal grievance.” The First Amendment is not so fragile that its guarantees rise or fall with the pronouns a speaker selects. And expressions of opinion, even distasteful ones, do not become matters of personal interest simply because they are phrased in the first person or reflect a personal desire. See, e.g., Rankin, 483 U.S. at 381 (holding that an employee’s statement to a co-worker that, “if they go for him again, I hope they get him,” in reference to the assassination attempt on President Reagan, was speech on a matter of public concern).

[...]

In Snyder, the Supreme Court held that picketers at a military funeral were speaking on a matter of public concern by wielding signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs” (or “improvised explosive devices,” often in the form of roadside bombs that would severely injure or kill soldiers), “God hates fags,” “You’re Going to Hell,” and “God Hates You.” Id. at 448. If those expressions—which arguably express glee at the death of a rank-and-file soldier— involve matters of public concern, so too does the speech here.

That doesn't exactly clear Marquardt for complete exoneration and reinstatement to his old position. The court only finds the speech is likely to be protected because it addressed issues of public concern and did not involve Marquardt presuming to speak for the city or the EMS unit that employed him. Marquardt's firing may still be justified. But the lower court was wrong to dismiss his lawsuit without further fact-finding.

Other than resolving the “public concern” question, our decision today is narrow. We do not decide any other aspect of Marquardt’s free speech claim, including whether the posts on his Facebook page amount to protected speech. In resolving this latter question, the district court will need to address whether Marquardt’s free speech interests outweigh the interest of the Cleveland EMS in the efficient administration of its duties. See Rorrer, 743 F.3d at 1047. On that issue, we note the well-settled rule that the government, when acting as an employer, may regulate employee speech to a greater extent than it can that of private citizens, including to discipline employees for speech the employer reasonably predicts will be disruptive.

There's some indication that Marquardt's posts affected his employer (the court mentions they were heavily-discussed by other EMS employees and many approached the EMS Commissioner with complaints about his comments) which will weigh against him when the district court takes another pass at this. And the EMS would certainly prefer its employees not express desires to kill children during their downtime. But that may not be enough to justify this firing. Public servants First Amendment rights are curtailed by their choice of profession, but they're not nonexistent.

Filed Under: 1st amendment, cleveland ems, ems, free speech, james marquardt, tamir rice

The Supreme Court's Failure To Protect The Right To Assemble Has Led Directly To Violence Against Protesters

from the SCOTUS:-you-get-what-the-government-gives-you dept

It appears the Supreme Court is unwilling to address a another problem it created.

The first major problem created by the Court has been discussed here quite frequently. Qualified immunity was created by the Supreme Court in 1967 as a way to excuse rash decisions by law enforcement if undertaken in "good faith." Since then, it has only gotten worse. Fifteen years later, the Supreme Court added another factor: a violation of rights must be "clearly established" as a violation before a public servant can be held accountable for violating the right. Further decisions moved courts away from determining whether or not a rights violation took place, relying instead on steadily-decreasing precedent showing this violation was "clearly established."

The Supreme Court continues to dodge qualified immunity cases that might make it rethink the leeway it has granted to abusive cops. Plenty of people have taken note of this, including federal court judges.

But that's not the only way the general public is being screwed by SCOTUS. As Kia Rahnama points out for Politico, the right to freely assemble -- long-considered an integral part of the First Amendment -- continues to be narrowed by the nation's top court. As violence against demonstrators increases in response to ongoing protests over abusive policing (enabled by qualified immunity's mission creep), those participating in the violence feel pretty secure in the fact they'll never have to answer for the rights violations.

For more than 30 years, the Supreme Court has failed to take up a freedom-of-assembly case. As a result, this fundamental constitutional right is in sore need of an update, such as a ruling that would protect protesters from the unduly harsh police response that has become all too common as a response to demonstrations in recent years.

It's not that freedom of assembly is novel -- something newly-constructed by court rulings. It's been around since the creation of the Constitution. The founders recognized the fact a group of aligned people had more chance of effecting change than separate individuals. But, as Rahnama points out, the Supreme Court has not taken up a case involving freedom of assembly in more than fifty years, allowing this right to be subject to decisions more than century old that limited speech in favor of protecting companies from their employees.

The Supreme Court shirked this responsibility first by holding that the right to assembly did not protect anything like the right to protest in the streets, beginning with a formative ruling in 1886. At the time, labor unrest and revolt were widespread, and many state governments were passing laws aimed at preventing potential insurrections by workers’ organizations.

The court said that if groups of people wanted to seek redress for their grievances, they were welcome to form political groups or engage in lobbying. The right to protest went from "established" to "only in some cases."

It's not that the court doesn't recognize the chilling effect created by government actions taken against speech and speakers they don't care for. It does. But it has refused to apply this theory to excessive force and overbearing crowd control tactics that are far more violent than they need to be.

The courts’ failure to update Americans’ understanding of the freedom of assembly has given law enforcement free rein to deploy strategies that increasingly have the potential to deter future participation in protests. This is nowhere more evident than in the type of the cases that make their way to the courts. Whereas 10 years ago the courts had to decide whether NYPD’s use of mounted police that frequently stepped on protesters’ feet was objectionable (they decided that it was not), today they hear cases about armies of special forces equipped with riot gear, chemical weapons and other top-level military-grade weaponry. Every step of this transformation in policing crowds has been fueled by the courts’ refusal to rein in the proclivity for an increasingly stronger show of force.

The fewer cases the court is willing to hear, the less precedent there is preventing law enforcement from engaging in violence against protesters, whether it's the indiscriminate use of tear gas or the direct targeting of protesters with "non-lethal" munitions that still have the capability to seriously injure.

The court has spent years refusing to rein this in. The end result of its inactivity is being observed around the nation as protests are greeted with paramilitary shows of force. By the time the court gets around to addressing this, it will be too late for those on the receiving end of this violence. No right to be free from tear-gassing and rubber bullets will have been clearly established.

Filed Under: 1st amendment, protests, right to assemble, supreme court

Washington Court Says First Amendment Protects Teen's Emoji-Laden Rant About Her Mother

from the prepare-to-feel-old[er]! dept

Via the wonderfully entertaining law blog Lowering the Bar comes this interesting First Amendment case involving teens, texting, true threat discussions, and a judicial examination of emojis.

This one started with a pretty normal mother-daughter altercation before escalating into a series of text messages that became the basis for criminal charges. It all began over an argument about appropriate clothing before moving on to involve a doorway. From the decision [PDF]:

The case against 17-year-old D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut. D.R.C.’s mother responded by removing the door from its hinges.

While this dispute continued, D.R.C. texted friends, venting her anger by engaging in some violent, but seemingly hyperbolic, imagery.

[D.R.C.] Imma fucking do whatever tf[2] I want she’s fucking stupid

JOSHUA Haha beat her ass

[D.R.C.] Bet imma get her killed if anything

JOSHUA Woh chill just beat her ass that’s it lol

[D.R.C.] Nah I hope she does Does 🤣

JOSHUA Damn too wild you are

The helpful footnote attached to "tf" explains:

The fuck.

Another discussion contained this message:

[D.R.C.] Imma fucking kill this bitch She is tryna make me go to my dads

Shortly after this, D.R.C.'s mom confiscated her phone, discovering these texts as well as some older ones discussing the "shanking" of some other person with a "pencil or bald point." These texts were punctuated with several emojis that gave them the context a dry emoji-less recitation just doesn't. Her mother reacted by changing the locks to the house, buying a stun gun, and sharing screenshots of the texts with police.

D.R.C. was charged with harassment in juvenile court. D.R.C. claimed the texts were harmless.

D.R.C. testified in her defense. She explained she never intended her messages to be seen by anyone other than her friends. Nor did she intend her texts to be taken seriously. They were instead a form of venting and expressing her emotions. D.R.C. testified she and her friends often used exaggerated language in their texts. Violent language was common but was not intended to be taken literally. According to D.R.C., she and her friends often denoted sarcasm through the use of emojis and initialisms such as LOLs or LMFAOs. D.R.C. did not think any of her friends would have taken the text messages about her mother seriously.

The court disagreed, finding D.R.C. guilty of harassment and her texts "true threats." D.R.C. challenged her conviction and sentence (13 days confinement and 12 months supervised release).

The court says D.R.C.'s testimony ultimately doesn't matter all that much. D.R.C. may have had no malicious intent but the court is required to ask whether D.R.C. should have reasonably assumed her texts might be viewed as threats by others not clued in to her subjective intent. And, for that matter, her mother's reaction to the texts doesn't matter because she was not the intended recipient. The messages were sent to D.R.C.'s friends, not to her mother.

With these principles in mind, we consider D.R.C.’s case. D.R.C.’s intended audience was not her mother, it was her two friends Joshua and Lexy. Thus, whether D.R.C.’s mother found her daughter’s texts alarming is not our focus. We instead must ask whether a reasonable person in D.R.C.’s position would have foreseen that either Joshua or Lexy would have interpreted D.R.C.’s texts as true threats, as opposed to merely a joke or an expression of emotion.

This might have been over already, but the trial court kind of screwed that up.

Our analysis of the perspective of Joshua and Lexy is hampered by the fact that neither was called as a witness at trial. Unlike prior cases such as Kilburn and Kohonen, we lack testimony here explaining the actual reactions of D.R.C.’s audience to her texts. Such reactions would be important in assessing whether it was reasonable for D.R.C. to believe her statements would have been interpreted as a joke or merely venting. These reactions also would have been helpful in analyzing the meaning of the various emojis D.R.C. sprinkled throughout her texts. Without explicatory testimony, we are left with only our impressions of the text message exchanges.

So, the court goes to the texts on the record. The first text exchange with "Joshua" doesn't appear to have made the recipient feel D.R.C. was actually going to harm her mother.

Even if Joshua had been troubled by D.R.C.’s comments, the context of the text messages is still not indicative of a true threat. Immediately after Joshua’s “lol” text, D.R.C. reiterated the joking nature of the exchange by accenting her message with an emoji entitled “rolling on the floor laughing.” 🤣 A reasonable person using this emoji in the context of Joshua’s “Haha” and “lol,” would not have foreseen D.R.C.’s statements as conveying a true intent to cause harm.

The same goes with the other exchanges, including the older messages discussing the "shanking" of an acquaintance.

D.R.C.’s past conversation with Lexy supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with ”Lmfao”; the face with tears of joy emoji,😂; a shrug emoji, 🤷; a smiling face with horns emoji, 😈; a zany face emoji,🤪; and a heart emoji,❤️. Ex. 3. The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.

Following this emoji-heavy discussion, the court says it has seen far more worrying statements from teens and still found them to be protected by the Constitution.

The language used by D.R.C. was distastefully violent, but it was not as disturbing as some of the past statements held to fall within First Amendment protections. In Kilburn, the juvenile defendant said to a classmate, “I’m going to bring a gun to school tomorrow and shoot everyone and start with you . . . maybe not you first.” 151 Wn.2d at 39. Despite the specificity of this statement and the fact the classmate found it troubling, our Supreme Court ruled that, in context, the statement did not constitute a true threat. If Kilburn’s statement was not a true threat, then D.R.C.’s emoji-filled texts certainly were not.

The court orders the juvenile conviction reversed, reminding everyone -- including state prosecutors -- that not all protected speech is pleasant.

While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language. We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile.

The First Amendment protects some of the worst speech -- and some of the most egregious deployments of emojis. Keep that in mind, parents. Not everything ugly that drips out of your ungrateful offsprings' mouth is a crime, no matter how much it may feel like it is at the time.

Filed Under: 1st amendment, emoji, free speech, harassment, texting, true threats, washington

California Fusion Center Tracked Anti-Police Protests, Sent Info To 14,000 Police Officers

from the BOLO:-free-speech-in-public dept

As anti-police brutality protests have spread across the country in the wake of the yet another killing of an unarmed Black man by a white police officer, so has surveillance. Another set of documents found in the "Blue Leaks" stash shows a California-based "fusion center" spreading information about First Amendment-protected activities to hundreds of local law enforcement agencies. Pulling in information from all over -- including apparent keyword searches of social media accounts -- the Northern California Regional Intelligence Center (NCRIC) distributed info on protests and protesters to officers across the state.

One way that NCRIC shares information is by sending bulk emails to its partners. Since the protests began, these have included vague, fear-inducing memos from the Department of Homeland Security and the FBI about the threat of violent civil unrest, as well as more specific information, including emails sent at 10 a.m. and 6 p.m. every day to more than 14,000 police officers across Northern California with updated lists of Black Lives Matter protests. During the 13-day period covered in the hacked files, over half of the bulk emails NCRIC sent were related to monitoring and policing the largely peaceful protests.

The information flowed both ways, with law enforcement recipients sending in their own tips in the form of "Suspicious Activity Reports." Everything gathered is combined to form the basis of the NCRIC's daily email blasts -- several of which included information about upcoming protests.

According to the documents in the Blue Leaks stash, NCRIC sent out updated lists of protests every day between May 31 and June 6. (The exfiltration of law enforcement documents occurred around June 6th, terminating this chain of correspondence.) These covered everything from anti-police violence protests to peace marches to remembrance events for victims of COVID-19. These were accompanied with notes from the NCRIC saying these updates would arrive twice a day and were for "situational awareness only." Even so, the focus on First Amendment activity is concerning.

“The fact that fusion centers are sending out lists of protests and other activities that are protected by the First Amendment is constitutionally suspect,” Vasudha Talla, a senior staff attorney with the American Civil Liberties Union of Northern California, told The Intercept. “They may try to justify it by attaching text alluding to the potentiality of certain criminal activity, but it’s clear from the documents that you showed me that there is no reasonable suspicions attached to any of these events.” She added, “Really what we have here is overbroad collection and dissemination of people’s protected First Amendment activity, and it’s untethered to any basis in the law.”

That's just one problem. The NCRIC says it's no longer doing this, but unless someone exfiltrates some more documents, it's kind of tough to tell whether the fusion center is telling the truth. And a hacking might be what it's going to take, because the NCRIC unilaterally declared the documents exempt from California public records laws. The boilerplate attached to each email blast probably won't hold up in court, but it at least forces records requesters to go to court to have any chance of obtaining them through less-illicit means.

The NCRIC -- with the input of the FBI -- also sent out blasts detailing supposed threats from social media users. The screenshots of tweets deprived of context were treated as threats against law enforcement, including one that said nothing more than "see a blue lives matter flag, destroy a blue lives matter flag." This tweet formed the basis of an FBI Situational Information Report that declared this a threat to "law enforcement supporters."

The NCRIC also forwarded dubious information from the Department of Homeland Security to these 14,000 officers. An uptick in downloads of police scanner apps prompted the DHS to claim "well-coordinated groups" had "potentially compromised" law enforcement communications, ignoring the fact police scanners have been used by citizens for years to listen in on law enforcement activity. Snagging a publicly available signal doesn't "compromise" anything.

Another document suggested "violent opportunists" were traveling to protests with "milk or other liquids" to mitigate the effects of crowd control chemicals. Again, this ignores the fact that many peaceful protesters also do the same thing for the same reason -- not just "violent opportunists." Pitching it this way makes it appear as though anyone trying to defend themselves against tear gas is a potential criminal, rather than someone just trying to exercise their First Amendment rights.

It's not that law enforcement agencies shouldn't be aware of protests in their area. They should, as they'll generally be called on to police them. But this can be done by law enforcement agencies themselves, with an eye on limiting information gathering to what is needed to ensure the maximum amount of safety for everyone. But that's not what's happening here. This is state and federal law enforcement working together to treat First Amendment activity as inherently suspicious or dangerous. The communications treat normal protest activity as novel, frightening, and adjacent to terrorism.

The fusion center is supposed to be providing usable intelligence, not just a bunch of random tweets coupled with dire sounding cop-speak. And this "intel" is being dropped into a charged atmosphere of "us vs. them," where the "us" is finally starting to realize the "them" is legitimately angry and capable of being a catalyst for changes law enforcement officers won't like. This encourages cops to treat peaceful protesters as threats, when all demonstrators are really threatening is law enforcement's complacency and lack of accountability.

Filed Under: 1st amendment, dhs, fbi, fusion center, ncric, police, police brutality, protests

Not A Good Look: Facebook's Public Policy Director In India Files A Criminal Complaint Against A Journalist For A Social Media Post

from the not-cool dept

In today's insanity, Facebook's top lobbyist in India, Ankhi Das, has filed a criminal complaint against journalist Awesh Tiwari. Tiwari put up a post on Facebook over the weekend criticizing Das, citing a giant Wall Street Journal article that is focused on how Facebook's rules against hate speech have run into challenges regarding India's ruling BJP party. Basically, the article said that Facebook was not enforcing its hate speech rules when BJP leaders violated the rules (not unlike similar stories regarding Facebook relaxing the rules for Trump supporters in the US).

Das is named in the original article, claiming that she had pushed for Facebook not to enforce its rules against BJP leaders because it could hurt Facebook's overall interests in India. Tiwari called out Das' role in his Facebook post, and it appears Das took offense to that:

In her complaint to the police, Das asked for an investigation to be opened against Tiwari for sexual harassment, defamation, and criminal intimidation. If charged and convicted, Tiwari could face fines as well as up to two years in prison for sexual harassment, up to two years for defamation, and up to seven years in prison for criminal intimidation, according to the Indian penal code.

The complaint appears to allege that she's faced threats and harassment since Tiwari's post:

In her complaint, Das said: “Since August 14, I have been receiving violent threats to my life and body, and I am extremely disturbed by the relentless harassment meted out to me by the accused persons. The content, which even includes my photograph, is evidently threatening to my life and body and I fear for my safety as well as that of my family members. The content also maligns my reputation based on a news article and I am subjected to name-calling, cyber bullying and eve-teasing online.”

Even if this were true, teasing and name calling should not be criminal offenses. But, even more to the point, why is Tiwari being blamed for the action of others. He just posted a post, citing the WSJ article, and criticizing Das. Das has all the power in the world to simply... respond on Facebook (the company which she works for).

As the Committee to Protect Journalists notes, this is absurd. Das should drop these claims and apologize. I certainly recognize the impossible position Facebook is put in with regards to content moderation, and completely understand that there are multiple tradeoffs at play in how Facebook chooses to handle moderation of politicians around the globe. But none of that justifies taking out a criminal complaint. And Facebook's response here is utter nonsense:

A Facebook representative told CPJ via email that the social media outlet takes the safety and security of its employees seriously, but said it does not comment on individual employee matters.

Sure, the complaint was taken out by Das, not Facebook, but Das is a representative of Facebook and this action reflects directly on the company.

Tiwari has now filed a counter complaint back against Das, which is not a great look either. His argument now is sort of the mirror image of Das's, saying that since news of her criminal complaint has come out, he has faced threatening comments as well.

It seems like this is just a typical internet-style flame war, except the participants all think the police should be involved and their critics should go to jail. And that's crazy. Take a breath everyone, drop the criminal complaints, and move on.

Filed Under: abuse, ankhi das, awesh tiwari, bjp, content moderation, criminal complaint, free speech, harassment, hate speech, india
Companies: facebook

Court Says First Amendment Protects Ex-Wife's Right To Publicly Discuss Her Ex-Husband On Her Personal Blog

from the [gestures-at-Dr.-Velyvis]-anyone-can-start-a-blog-on-Wordpress dept

What appears to be a very combative divorce between two very combative people in Marin County, California has reached the point of criminal charges. Not justifiable criminal charges, but criminal charges all the same.

Melissanne Velyvis has been very publicly documenting everything about her divorce proceedings and her ex-husband's (Dr. John Velyvis) alleged domestic abuse. In an apparent attempt to silence her from discussing her personal life (which necessarily involved discussing his personal life), John approached a judge and secured a restraining order forbidding his ex-wife from publishing "disparaging comments." Here's Judge Beverly Wood making her feelings clear about Melissanne's divorce-focused blogging:

“I really came into this hearing not wanting to issue this order and really hoping that I wouldn’t have to issue this order, but it has to stop,” Wood said, according to a transcript of the proceeding. “It really has to stop. And I need to tell you that if you don’t stop this, this can become a criminal matter. I don’t think you want to go there.”

The order was expansive. It not only banned future "disparaging" posts but ordered the removal of everything fitting that description Melissanne had posted in the past.

I am making an order that you remove any posting on social media on Internet regarding Dr. John Velyvis and that you not post anything on social media regarding Dr. Velyvis or his children directly or indirectly. [...] I am going to order that you prevent disseminating any information about Dr. Velyvis to any parties absent a court order or subpoena.

Melissanne did not stop posting. Last December, Marin County prosecutors filed criminal charges over the violation of the restraining order. The prosecutor argued the prior restraint was Constitutional because the alleged harassment targeted by the order was unlawful.

Melissanne challenged the order. Seven months after being criminally charged for discussing her divorce and her ex-husband online, the restraining order has been dismantled by another county judge.

[Judge Roy] Chernus ruled on the petition on July 27. He agreed that the prior court order was an unconstitutional block on free speech, and said the criminal charge could not stand.

“In California, a court must find that ‘extraordinary circumstances’ exist in order to restrain the defendant’s right to share independently obtained information about another adult with other willing adults,” Chernus wrote. “The fact the public sharing of these comments might be humiliating to the targeted adult, or cause emotional distress or even cause harm to the subject’s professional reputation, does not rise to the level of a compelling or extraordinary circumstance.”

The ruling [PDF] (thanks, Volokh Conspiracy!) makes it clear the order is only unconstitutional as far as it applies to Melissanne's online postings. Other elements regarding "unwanted contact" still apply.

The court cites a handful of other divorce proceedings in which similar restraining orders were found unconstitutional. Just because one of the parties may feel harassed by the other party's discussion of ongoing acrimony doesn't make it unlawful for the party to engage in this speech. Unless the speech falls into narrow categories (like defamation or true threats), the speech is Constitutionally protected.

There is nothing on the face of the complaint, or in the Family Court judge's judicially-noticed findings of fact to indicate any of defendant's communications were previously found to be defamatory.

As stated in the DVPO, the Family Law judge found that defendant's statements about Dr. Velyvis were intentionally harassing, damaged his reputation and interfered with his personal relationships.

Based on the authorities discussed above, these reasons are insufficient to justify such a broad prohibition. The court finds that the portion of the DVPO restraining defendant from posting on the internet or communicating any information about defendant's ex-husband or his children is impermissibly overbroad and constitutes an invalid prior restraint under the federal and California constitutions.

Since the order is invalid, so is the criminal charge.

Violation of this portion of the DVPO, therefore, is not an actionable offense.

The protective order can still be violated but it can no longer be violated simply by posting content Dr. John Velyvis feels is disparaging or personally harmful. The First Amendment -- and California's own Constitution -- protects the right of divorce participants to make each other as miserable as possible. Which is as it should be, since divorce is just as much an American tradition as free speech itself.

Filed Under: 1st amendment, california, divorce, free speech, john velyvis, marin, melissanne velyvis

Why Keep Section 230? Because People Need To Be Able To Complain About The Police

from the discourse-demands-it dept

The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important – and, as we'll explain here, why Section 230 is as well.

To recap, protester Kevin Alfaro became upset by a police officer's behavior at a recent Black Lives Matter protest in Nutley, NJ. The officer had obscured his identifying information, so Alfaro tweeted a photo asking if anyone could identify the officer "to hold him accountable."

Several people, including Georgana Szisak, retweeted that tweet. The next thing they knew, Alfaro, Sziszak, and several other retweeters found themselves on the receiving end of a felony summons pressing charges of "cyber harassment" of the police officer.

As we've already pointed out, the charges were as pointless as they were spurious, because they themselves directly did the unmasking of the officer's identity, which the charges maintained was somehow a crime to ask for. Over at the Volokh Conspiracy, Eugene Volokh took further issue with the prosecution, and in particular its application of the New Jersey cyber harassment statute against the tweet. Particularly in light of an earlier case, State v. Carroll (N.J. Super. Ct. App. Div. 2018), he took a dim view:

N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person … knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.

According to the criminal complaint, the government's theory is that the post "caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property."

But the Tweet (and the retweet) aren't "lewd, indecent, or obscene." ... [And] if the "lewd, indecent, or obscene" element isn't satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn't apply regardless of whether it was posted with the intent to "caus[e] Det. Sandomenico to fear that harm will come to himself, family and property."

These "cyber harassment" statutes are often problematic, targeting for punishment what should be protected and often socially valuable critical speech. Cases like these, where they get applied to criticism of state power, highlight the Constitutional concern. Being able to speak out against the state is at the heart of why we have the First Amendment, and laws interfering with that ability offend the Constitution. In this case, even if the New Jersey law had been drafted in a sufficiently narrow way to not be unconstitutional on its face by – in theory – only targeting speech beyond the protection of the First Amendment, applying it in this way to speech that should have been protected made it unconstitutional.

But while it's bad enough that the original tweeter had been targeted by the police for his speech, the aspect of the story that is most worrying is that police also targeted for prosecution people who had simply retweeted the original tweet. Section 230 should have barred such prosecutions. And before we so casually chuck out the statute, as so many propose, we need to understand why it should have applied here, and why it is so important to make sure that it still can in the future.

The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it's the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution. Especially online, where speaking requires the facilitation of others, we need both: the First Amendment to make it possible to speak, and Section 230 to make it possible to be heard.

This case illustrates why it is so important to have both, and why Section 230 applies, and must apply, to more than just big companies. Here, someone tweeted protected speech to notify the community of concerning police behavior. Section 230 ensured that the Internet platform – in this case, Twitter – could exist to facilitate that speech. And it's good that Section 230 meant that Twitter could be available to play that role. But Alfaro only had 900 followers; Twitter helped him speak, but it was the retweeters who turned that speech into discourse by helping it reach the community. They had just as important a role to play in facilitating his speech as Twitter did, if not even more so.

It's important to remember that the statutory text of Section 230 in no way limits its protection to big Internet companies, or even to companies at all. It simply differentiates between whoever created the expression at issue (and can thus be held to answer for it) and who facilitated its distribution online (who therefore can't be). Given how important that facilitation role is in having meaningful public discourse, we need to ensure that everyone who performs it is protected. In fact, it may be even more important to ensure that individual facilitators can maintain this protection than the larger and more resourced corporate platforms who can better weather legal challenges.

Think about it: think about how many of us share content online. Many of us may even share far more content created by others than we create ourselves. But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.

And that chilling is not a good thing. One could certainly argue that people should take more care when they share content online and do the best they can in vetting it before sharing it, to the extent it is possible. Of course, it could also be fairly said that many people should use their right to free speech more productively than they necessarily do. But the reason we protect speech, even low-value speech, is because we need to make sure that the good, socially beneficial speech we depend on to keep our democracy healthy can still get expressed too. Which is also why we have Section 230: it is not possible to police all the third-party created content we intermediate, and if we want to make sure that the good, socially beneficial content can get through, to reach the people who need to hear it, then we need to make sure that we don't have to. When we snip away at Section 230's protection, or limit its application, we obstruct that spread and curtail the discourse society needs. We therefore do so at our peril.

Obviously in this case Section 230 did not prevent the attempted prosecution. Nor did the First Amendment, and that the police went after anyone over the tweet was an unacceptable abuse of authority that imposed an enormous cost. Discourse was damaged, and the targeted Twitter users may now think twice before engaging in online discourse at all, much less discourse intending to keep state power in check. These are costs that we, as a society, cannot afford to bear.

But at least by having both of these defenses available, the terrible toll this attempted prosecution took was soon abated. Think about how much worse it would have been had they not been. And ask why that is a future we should be continuing to spend any effort trying to invite. Our sole policy goal should be to enhance our speech protections, to impose costs on those who would undermine public discourse through their attempts at abusive process. The last thing we should be doing is taking steps to whittle away at them and make it any easier to chill discourse than it already is, and cases like this one, where people were trying to speak out against abuses of power, illustrate why.

Filed Under: criminal charges, georgana sziszak, kevin alfaro, new jersey, nutley, protests, retweets, section 230

Judge Forbids Facebook Users Being Sued By A Cop From Publishing The Cop's Name On Social Media

from the [insert-Big-Lebowski-quote] dept

Eugene Volokh reports an Ohio court has hit a number of defendants in a libel lawsuit with an unconstitutional order forbidding them from posting the name of the man suing them. It's no ordinary man, though. It's a police officer who several attendees of a Cincinnati city council meeting have both identified and claimed used a racist hand sign while interacting with them.

A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.

Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the “ok” sign at a City Council meeting in June – a meeting held to address concerns by those in the Black Lives Matter Movement.

They posted about it on Facebook and other online forums, leading the officer to file his lawsuit.

Nothing all that unusual about this. Someone with pretty thin skin was offended that other people said mean things about him and decided to sue about it. That the plaintiff is a police officer is a little different, but not unheard of. That the police officer talked a judge into allowing him to file pseudonymously and place his affidavit under seal is a bit stranger. From there, it just gets stranger and more unconstitutional

This is from Volokh:

I've also learned that the judge has issued a temporary restraining order—without any participation on the defendants' part—ordering them not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information." The order doesn't define "personal identifying information," but the only Ohio statute that does define term (the identity fraud statute) defines it to include a person's "name."

Thus, the bloggers are banned from mentioning the police officer at all. They aren't just banned from libeling him; even a post conveying accurate information, or expressing an opinion, about the police officer is forbidden, if it mentions the officer's name.

This order [PDF] only targets future posts. That's some prior restraint right there. And while the judge may have meant no one can publish anything like the cop's home address or personal phone number, the lack of specificity allows it to be read as banning the use of the officer's name.

Not that it's all that difficult to figure out who this officer is. Multiple attendees (who are now defendants in this lawsuit) posted the officer's name online and linked to what appears to be the officer's Facebook account. Searching through the defendants' social media profiles brings up the posts referring to the officer by name.

The officer's Facebook page has had all of its posts deleted. The header image has been replaced with this, which appears to be a direct response to those accusing him of flashing the "ok" sign at the city council meeting.

Officer Ryan Olthaus -- who was involved in the controversial killing of Dontez O'Neal in 2012 -- goes by the name "Michael Ryan" on his Facebook page. The pseudonym being used in the lawsuit against these social media users is "M.R."

That all seems to add up to Officer Pseudonym. His lawyer seems to feel the current, possibly unconstitutional order doesn't go far enough, though. The officer would also like to see the defendants forced to remove any previous posts about him. His attorney argues the posts are libelous because [checks filing] they were made by people who don't like cops.

Defendants posted these statements on their social media platforms, accusing Plaintiff of being a white supremacist in a climate of severe hostility toward police officers. Further, at least one Defendant threatened to dox Plaintiff -- to reveal his personal identifying information online -- seemingly for sport. Other posts include, “Fuck SWAT,” “Fuck 12,” “ACAB”, “1312” and many similar statements evidencing the Defendants’ hatred and malice toward the police, including the Plaintiff.

The court hasn't ruled that any of the posts being sued over are actually libelous. So, at this point, the officer has no legal basis to demand their removal. The officer has already been granted one broad restriction on the posting of his personal information (which includes his name) by the suit's defendants. Now, he wants to go even further. And he wants to do it while keeping his name from being tied to his dubious litigation.

Eugene Volokh (along with the Cincinnati Enquirer) are asking the judge to unseal the documents. And hopefully the defendants will challenge the restraining order and make the court rethink (or perhaps consider thoughtfully for the first time) its blanket ban on publishing this officer's personal information.

Filed Under: 1st amendment, cincinnati, criticism, defamation, free speech, ohio, police, prior restraint, ryan olthaus