It's been truly amazing that, for years, despite being the heart of the media business in the US, New York state had a pathetically weak anti-SLAPP bill. It only applied to issues related to petitioning the government. So you were protected from lawsuit if you were complaining about a law or zoning issues, but these days most SLAPP suits are unrelated to such things. So it's exciting to find out that the New York legislature has finally passed a real anti-SLAPP law. The actual bill expands the coverage of NY's anti-SLAPP law to include:
Any communication in a place open to the public or a public forum in
connection with an issue of public interest; or ii. Any other lawful
conduct in furtherance of the exercise of the constitutional right of
free speech in connection with an issue of public interest, or in furth-
erance of the exercise of the constitutional right of petition. The bill
also specifies that "public interest" should be broadly construed.
That's... great. Like many other anti-SLAPP laws, this one seeks to stop expensive discovery early on until the plaintiff can prove their case has a chance, and expands the situations in which attorneys' fees will be awarded to the defendant who was victimized by a SLAPP suit. The new law says that such costs and fees:
"shall be recovered upon a
demonstration that a SLAPP suit was commenced or continued without a
substantial basis in fact or law and could not be supported by a
substantial argument for the extension, modification, or reversal of
existing law."
NY Senator Brad Hoylman took a well deserved victory lap for getting this bill through (it still needs to be signed by Governor Cuomo):
#BREAKING: For decades, powerful men like Donald Trump & Harvey Weinstein have abused our justice system to silence, intimidate, and impoverish their critics with frivolous lawsuits known as SLAPPs.
Of course, given that we were just talking about how the 2nd Circuit (which covers NY), has decided that state anti-SLAPP laws don't apply in federal court, that still means that those wishing to bring SLAPP suits there can get around the law by coming up with some federal cause of action. This is yet another reminder of why we need a federal anti-SLAPP law already and it's a travesty we don't have one yet.
I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.
In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.
While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:
“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen’s public communications.
“I’ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,” the judge said. “Why would the Bureau of Prisons ask for something like this ... unless there was a retaliatory purpose?”
In ruling, Hellerstein said he made the “finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.” He added: “And it’s retaliatory for his desire to exercise his First Amendment rights to publish the book.”
This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren't for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.
A little more than a year ago, a federal court was asked how much First Amendment do we hand out to minors? Well, it's more than this particular school thought. The Pennsylvania school being sued was pretty sure it could draw the First Amendment line wherever it felt was appropriate. That's why administrators took action against a teen cheerleader (referred to in the lawsuit as "B.L.") when she decided to express her displeasure with her extracurricular activities with some extra-colorful language.
B.L. took to Snapchat to rant about her cheerleading experience, culminating in a "fuck school fuck softball fuck cheer fuck everything" post that the school decided violated B.L.'s agreement not to disparage the school or its cheer program. The school agreed that students had Constitutional rights, but that B.L. had waived hers when she joined the cheerleading program. The federal court disagreed, stating that the revocation of rights must be voluntary, but B.L.'s wasn't really of the free will and volition variety.
[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules.
Also:
Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive.
Having learned a valuable lesson about the First Amendment and how voluntary agreements should actually be voluntary, the school walked away from the suit chastened and newly respectful of students' rights.
Oh wait. The other thing.
The school appealed, determined to waste more taxpayer money attempting to secure judicial blessing to screw taxpayers' offspring. And the Third Circuit Court of Appeals says the First Amendment still holds.
Before we get to the heart of the First Amendment affirmation [PDF] delivered by the Third Circuit, let's stop and appreciate this brief discussion of emojis.
B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. 1 The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” J.A. 484. To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else? 🙃?.”2
Here's the footnote appended to the inverted smiley:
The “upside-down smiley face” emoji “indicate[s] silliness, sarcasm, irony, passive aggression, or frustrated resignation.” Upside-Down Face Emoji, Dictionary.com, https://www.dictionary.com/e/emoji/upside-down-face-emoji (last visited June 25, 2020).
A wealth of emotions contained concisely. If brevity is the soul of wit, I have severely underestimated the incredible depth of the text messages I've received from my offspring. That being said, it's great to see courts willing to discuss emojis since they're going to be an inescapable part of First Amendment jurisprudence for the foreseeable (and unforeseeable, if we're honest) future.
The court makes quick work of the First Amendment arguments. Is this speech protected? Yes. Tinker says so and has said so for years. Online communication platforms can blur the line between on-campus and off-campus speech, but the courts should err on the side of caution rather than draw harmful conclusions that damage free speech protections this country has respected since its conception.
The courts’ task, then, is to discern and enforce the line separating “on-” from “off-campus” speech. That task has been tricky from the beginning. See, e.g., Thomas, 607 F.2d at 1045–47, 1050–52 (declining to apply Tinker to a student publication because, although a few articles were written and stored at school, the publication was largely “conceived, executed, and distributed outside the school”). But the difficulty has only increased after the digital revolution. Students use social media and other forms of online communication with remarkable frequency. Sometimes the conversation online is a high-minded one, with students “participating in issue- or cause-focused groups, encouraging other people to take action on issues they care about, and finding information on protests or rallies.” Br. of Amici Curiae Electronic Frontier Foundation et al. 13. Other times, that conversation is mundane or plain silly. Either way, the “omnipresence” of online communication poses challenges for school administrators and courts alike.
[...]
The lesson from Reno and Packingham is that faced with new technologies, we must carefully adjust and apply—but not discard—our existing precedent. The thrust of that lesson is not unique to the First Amendment context. But it may be of special importance there because each new communicative technology provides an opportunity for “unprecedented” regulation. Packingham, 137 S. Ct. at 1737. And even when it is unclear whether the government will seize upon such an opportunity, the lack of clarity itself has a harmful “chilling effect on free speech.” Reno, 521 U.S. at 872. Updating the line between on- and off-campus speech may be difficult in the social media age, but it is a task we must undertake.
When B.L. hopped on Snapchat to deliver a set of derogatory F-bombs about her school experience, she did so with the force of the First Amendment behind her. This was about school. This was not of the school, so to speak.
Applying these principles to B.L.’s case, we easily conclude that her snap falls outside the school context. This is not a case in which the relevant speech took place in a “school-sponsored” forum, Fraser, 478 U.S. at 677, or in a context that “bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at 271. Nor is this a case in which the school owns or operates an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school listserv”). Instead, B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school. And while the snap mentioned the school and reached MAHS students and officials, J.S. and Layshock hold that those few points of contact are not enough. B.L.’s snap, therefore, took place “off campus.”
Good stuff, but it gets even more entertaining here. The Appeals Court cited Tinker in support of its respect of the student's free speech rights. The school cited Tinker in support of its refusal to respect the First Amendment rights of the student. Guess who's actually correct.
The Tinker test asks whether or not contested speech might reach the school and leapfrog the gap between on-campus and off-campus. The Appeals Court says that's an inevitability in the social media age. But that doesn't change the underlying rationale. The question isn't whether f-bombs on social media will be seen by other students. That's always a possibility. The question is whether the student's speech is perceived to be a representation of the school itself. In this case, the student's Snapchat messages could not have been seen as a proxy for the school's speech. It was solely the disgruntled cheerleader's protected expression of displeasure.
We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.
The Appeals Court lays down the ground rules for further school-related free speech challenges. Social media platforms may have muddied the waters but the court wades in to draw a bright line.
[A] test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.
Finally, the court addresses the school's contention that B.L. waived her rights when she agreed to participate in the cheerleading program. Whether or not the waiver was valid, the rule that waived it didn't apply to B.L.'s fuck parade.
B.L.’s snap contained foul language and disrespected her school and team. But the rule’s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.” Id. That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large. Indeed, one of the cheerleading coaches recognized that the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.” J.A. 90. So this rule is of no help to the School District.
The court's conclusion? We personally may not have chosen to deploy a mixture of swear words and emoji to convey our thoughts but that doesn't make this conveyance of thoughts any less worthy of First Amendment protection.
The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. Appellant’s Br. 24 (citation omitted). To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.” Tinker, 393 U.S. at 508–09.
Fuck cheer, indeed. Students of the Third Circuit: rejoice. The court has your foul-mouthed backs.
The Second Circuit just issued an ugly decision in a defamation lawsuit against Joy Reid. It not only revived the case against her, but it greased the skids for many more defamation cases to be brought in federal court, including plenty even less meritorious.
The case, La Liberte v. Reid, involves two of Reid's social media posts from 2018. The first was from June 29:
At some point during the Council Meeting, La Liberte was photographed interacting with a fourteen-year-old teenager who appears to be (and is) Hispanic (the "Photograph"). The Photograph showed La Liberte with her mouth open and her hand at her throat in a gagging gesture. On June 28th, a social media activist named Alan Vargas tweeted the Photograph along with the following caption: "'You are going to be the first deported' [and] 'dirty Mexican' [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast." The Photograph went viral. The next day, Joy Reid, a personality on the MSNBC cable station, retweeted (i.e., shared) the Vargas tweet to her approximately 1.24 million followers. (La Liberte is not alleging defamation by Reid as to that communication.) Later that same day (June 29), Reid posted the Photograph on her Instagram with the following caption: "He showed up to a rally to defend immigrants . . . . She showed up too, in her MAGA hat, and screamed, 'You are going to be the first deported' . . . 'dirty Mexican!' He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away." [p.6-7]
The second was from July 1:
Two days later (July 1), Reid published another post about La Liberte, this time on Instagram and Facebook. This post juxtaposed the Photograph of La Liberte with the 1957 photograph showing one of the Little Rock Nine walking past a screaming white woman. Reid added the following caption: "It was inevitable that this [juxtaposition] would be made. It's also easy to look at old black and white photos and think: I can't believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove" [p. 7-8]
Subsequently, further media coverage revealed that the plaintiff had not been the source of the cited racist comments. [p. 7] On July 2 the plaintiff contacted Reid to ask that she delete the posts and apologize, which Reid did later that day. [p. 8]. Despite her doing so, the plaintiff sued anyway, but the district court in EDNY then dismissed it.
The Second Circuit has now stepped in to revive the case, and in doing so opened the door not only to this troublingly weak case but plenty of others even weaker.
There are a number of issues with the decision:
Its denial of Section 230 protection;
Its refusal to find the plaintiff a limited purpose public figure;
Its refusal to allow California's anti-SLAPP law apply in federal diversity cases; and
Its insistence on rendering destructive precedential decisions on questions that were moot.
Section 230
Section 230 became an issue because Reid had raised it as a defense for her June 29 posting of the picture on Instagram with her caption (although not her July 1 post on Instagram and Facebook). The district court rejected that defense, and the Second Circuit agreed with that rejection. But whereas it mattered less in the district court because it had found other reasons to dismiss the case against Reid, because the Second Circuit kept the case alive, it doing so also on Section 230 grounds raises more concerns (plus, it is an appeals court, so its decision will reverberate more into the future).
In denying her the statute's protection the court did get the basic rules right: only the party that created the offending expression can be held liable for it. Furthermore, citing earlier Circuit precedent, "a defendant will not be considered to have developed third-party content unless the defendant directly and 'materially' contributed to what made the content itself 'unlawful.'" [p. 22]. But in denying her the protection it applied these rules in a way that may expose myriad other social media posters - and even platforms themselves - to litigation in the future, and in a way that Section 230 should really forestall.
Reid was ostensibly only being sued for the commentary that she added to her re-posts of the original picture, and not the photographer's original tweet. Had it been the latter, Section 230 would have more clearly applied. Asserting it for her own speech is an aggressive argument, but not a ridiculous one. It's also not one that the court dismissed out of hand. As that prior precedent made clear, liability for speech hinges on who imbued the speech with its allegedly wrongful quality. Reid argued that it wasn't her: The original post had been of a picture of the plaintiff seemingly shouting threateningly at a Latino boy, and included a caption indicating that this picture was captured at an event where racist invective was shouted at him. Thus it was reasonable to take the original post as the statement that La Liberte was one of the people doing that shouting. Unfortunately that statement turned out to be wrong, but Reid repeating that statement in her own words was not what introduced the wrongfulness. Therefore she was not actually the "information content provider" with respect to this message, and Section 230 should have applied.
The trouble is, in the court's view, she had been the one to imbue the message with its wrongful quality. What might have made this case a close call was that the original post had only included an unspecific "they" in reference to the shouters, whereas Reid had attributed it to the plaintiff by name. However that attribution had already been made in the original post – not by her name, true, but by her picture. Thus Reid did not introduce anything new to the overall expression. Indeed, that she believed, albeit erroneously, that the plaintiff had screamed the invective at the boy was because that was the message the original post had conveyed. It may have been an erroneous message, but she was not the one who originated it.
The problem with now finding her the "information content provider" in this situation is that it reads into Section 230 a duty of care that does not exist in the statutory language, requiring people who share others' expression to make some sort of investigation into the veracity of that expression. While it might be good if people did – we certainly would like for people sharing things on social media to be careful about what they were sharing – Section 230 exists because it is hard to get intermediation of expression right, and we risk choking off speech if we make it legally risky to get wrong. (See what happened to Reid, where even if she had been wrong about the significance of the underlying tweet, it was a reasonable error to make.)
Worse, not only would it chill social media sharing, but this decision is unlikely to stay tightly cabined to that sort of intermediation of others' expression. If it were the rule that you had to vet the expression you allowed to be shared before you could be safe from sharing other people's expression, then Section 230 could almost never apply and *everyone* would be vulnerable to being sued over the expression they intermediate, since no matter how much care they took since they'd still have to defend those efforts in court. Such a rule would represent a profound shift in how Section 230 works, which up to now has not been conditional. Twenty-plus years of jurisprudence has made clear that Section 230 protection is not contingent on the intermediary vetting the expression produced by third parties that it helps share, and this decision undermines that clarity. And not just for social media users, but the platforms they use as well.
Ultimately, if Section 230 can apply to individuals sharing others' social media posts (prior precedent supports that conclusion, and this court accepted it as well [see footnote 8]) and if it can apply to original, summarizing content (as this court also accepted), then there's no principled reason it should not have applied here.
Limited-purpose public figures
Denying Section 230 protection is only the tip of the iceberg. Not only does it make people who share on social media vulnerable to being sued, but other aspects of the decision make it more likely that it is litigation they will lose.
The court's refusal to find that the plaintiff was a limited purpose public figure is one of these aspects. Because open discourse about matters of public concern is a value the First Amendment exists to protect, the Supreme Court has developed the concept of the "public figure" to help ensure that it is. A public figure is someone whose fame has so intertwined them in matters of public interest that they must plead "actual malice," a fairly exacting standard, on the part of a speaker in order to prevail on a claim that the speaker defamed them.
Here, no one argued that the plaintiff was a general purpose public figure. But there are also "limited-purpose public figures." These are people who are not inherently intertwined in matters of public interest but who may insert themselves in matters that are and thus become public figures within the context of that matter. In such cases they would also need to plead actual malice in any defamation lawsuit where there had been commentary about them in this context.
Reid argued that the plaintiff was a limited purpose public figure. In particular, she regularly appeared at council meetings about the immigration issue and had been visibly, and publicly, vocal on the subject. The court rejected the contention:
That is not nearly enough. […T]he district court did not take into account the requirement that a limited purpose public figure maintain "regular and continuing access to the media." One reason for imposing the actual malice burden on public figures and limited purpose public figures is that "[t]hey have media access enabling them to effectively defend their reputations in the public arena." We have therefore made "regular and continuing access to the media" an element in our four-part test for determining whether someone is a limited purpose public figure. [p. 24-25]
Per the court, "La Liberte plainly lacked such media access." [p. 25].
The earlier photograph, which showed her conversing, was in a Washington Post photo spread of attendees at an SB 54 protest. The article did not name La Liberte, let alone mention her views. The single caption described everyone depicted as “[s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los Alamitos City Hall.” Such incidental and anonymous treatment hardly bespeaks “regular and continuing access to the media.” [p. 25]
Furthermore:
Nor does La Liberte’s participation at city council meetings. La Liberte is said to have “testif[ied] eight times around the state” (Appellee’s Br. at 26 (citing App. at 102-05)); but Reid does not identify instances in which the media singled out La Liberte’s participation as newsworthy. Nor does speech, even a lot of it, make a citizen (or non-citizen) fair game for attack. Imposition of the actual malice requirement on people who speak out at government meetings would chill public participation in politics and community dialogue. [p. 26]
The problem with this analysis is that it better applies to why a person engaging in civic affairs does not become a full-fledged public figure, where every aspect of their life can be a matter of public interest. It misses the significance of why we have the limited purpose public figure doctrine in the first place, which is that in the context of a specific matter of public concern a person's behavior can become a matter of public interest. Here the plaintiff had concertedly inserted herself into a matter of public concern – the policymaking surrounding immigration - on a "regular and continuing" and conspicuously public basis. The court's ruling puts that public behavior beyond the reach of effective public comment by treating it as if it were private and thus lowering the standard of what the plaintiff would have to plead to support a defamation claim.
State anti-SLAPP in federal court
The decision also reaches an unfortunate conclusion we've taken issue with before: disallowing state anti-SLAPP laws in cases that end up in federal court via diversity jurisdiction. It's a conclusion that seems to reflect dubious constitutional analysis, is bad policy, and in this case, conflicts with Ninth Circuit precedent.
As we explained before:
Diversity jurisdiction arises when the parties in the litigation are from separate states and the amount in controversy is more than $75,000 and the issue in dispute is solely a question of state law. Federal courts ordinarily can't hear cases that only involve state law, but because of the concern that it could be unfair for an out-of-state litigant to have to be heard in a foreign state court, diversity jurisdiction can allow a case that would have been heard in state court to be heard by the federal one for the area instead.
At the same time, we don't want it to be unfair for the other party to now have to litigate in federal court if being there means it would lose some of the protection of local state law. We also don't want litigants to be too eager to get into federal court if being there could confer an advantage they would not have had if the case were instead being heard in state court. These two policy goals underpin what is commonly known as the "Erie doctrine," named after a 1938 US Supreme Court case that is still followed today.
The first problem with the Second Circuit's decision is that it does not even *mention* the Erie doctrine – instead it just dives right into a procedural rules' analysis. [p. 13]. The second problem is that its decision directly conflicts with Ninth Circuit precedent that applied Erie to find that California's anti-SLAPP law indeed applied in federal diversity occasions. In other words, the Second Circuit has just reached across the country and into the Ninth Circuit to snatch away the protection of a law that the Ninth Circuit already had assured Californians that they had.
The third problem is that it is bad policy because it would encourage forum-shopping, which is normally discouraged. As the Ninth Circuit articulated in that case, US Ex Rel. Newsham v. Lockheed Missiles & Space Co.:
[I]f the anti-SLAPP provisions are held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum. Conversely, a litigant otherwise entitled to the protections of the Anti-SLAPP statute would find considerable disadvantage in a federal proceeding.
The Second Circuit appeared indifferent to these concerns:
Finally, amici warn that refusal to apply the anti-SLAPP statute will “encourage forum shopping” and lead to “an increased burden on federal courts in this Circuit.” (Amici Br. at 11.) That may be so; but our answer to a legal question does not turn on our workload; and in any event, the incentive to forum-shop created by a circuit split can be fixed, though not here. [p. 16]
The concern about forum-shopping is not that it will overburden federal courts; the concern the is manifest unfairness to defendants that will arise when they suddenly lose the benefit of the the substantive protections for speech California gave them – and upon which they may have depended on to speak – because an out-of-state litigant was able haul them into federal court.
Mootness
It is also not clear why the Second Circuit even reached the anti-SLAPP question. If its public figure analysis was correct, the defense would be unlikely to be able to even use it, because by that logic the expression at issue would have failed to meet the anti-SLAPP law's requirement that it be about a matter of "public issue." Thus there was no need for this court to ever reach the anti-SLAPP question, and yet it chose to opine on it first, before even reaching the Section 230 and then the public figure discussions. But because after those latter two analyses there was no reason to reach the anti-SLAPP discussion, and it raises the question of whether at this point it was even a ripe enough issue for the court to have had appellate jurisdiction over. But even if it did, doctrines of judicial restraint should have precluded deciding the issue and creating a mess that speakers who thought they were protected will now have to contend with.
In a much more detailed order than his original Temporary Restraining Order, NY Supreme Court judge Hal Greenwald gives multiple reasons for rejecting the effort, lead by the President's lawyer Charles Harder but on behalf of the President's brother Robert Trump, to claim that the contract that was agreed to among various family members should block the publication of the book. Some had noted that the gag clause in the agreement between the various Trump family members was quite broad, and wondered how that might actually lead to problems with publication, but Judge Greenwald notes that the broadness works against the contract here:
Reviewing the Agreement and the words contained therein, considering what is known of the parties at that time and the circumstances of, what appeared to be somewhat nasty litigation, it is possible to read the Agreement and see a contract with a confidentiality clause. Yet, the clause is so overly broad, as to be ineffective.
He claims that Harder/Trump attempted to "misinterpret the Agreement" and says that they want the court to "puzzle the pieces" of the Agreement to read much more broadly than they should.
According to the above reading, the case is slam dunk. But it is not. Too many words, with too many meanings. The cost of the litigation that was settled should have been finalized with more specifics, more clarity, if the current situation was even comprehended, at the time the Agreement was signed
The Judge, following on the guidance from the Appellate court, makes it clear that Simon & Schuster is not "an agent" of Mary Trump, and therefore is not bound by the agreement. That was pretty much widely expected.
The bigger question, then, was what about Mary Trump. And here, the court says that Robert Trump has completely failed to show what irreparable harm there would be from Mary's book being published:
At this point, plaintiff asserts that the release of confidential information, no matter what it is amounts to irreparable harm. He is unaware of the information contained in the Book, in which case the court finds he does not sustain his claim; or there is already so much confidential information “out there” pertaining to the plaintiff, that it is moot for the court to even consider an injunction. In the instant matter, the movant has not shown sufficient information that he will be likely to have success on the merits of his case. Moreover, even if the court were to relax the standard applicable to likelihood of success, it still would fail. Plaintiff’s arguments in support of a finding in his favor on his Verified Complaint are unavailing. Accordingly, the Court rules that ROBERT TRUMP has not demonstrated by “clear and convincing’ evidence that he has a likelihood of success on the merits of his case.
Furthermore, the court later highlights one of the oddities of having the President's brother file the lawsuit, rather than the President himself: namely that it's likely that any "damage" should that come from the book would be targeted at the President. But the President is not the plaintiff:
In the matter before this Court, Plaintiff has failed to meet his burden of demonstrating, imminent, irreparable harm, to him (emphasis added). His allegations are unsupported and conclusory. They are without any specifics as to how he, ROBERT S. TRUMP will suffer irreparable harm. Remember the Plaintiff is ROBERT S. TRUMP and no one else. There has been nothing offered that demonstrates that the actions by MARY LTRUMP in publishing the Book will irreparably harm sole plaintiff ROBERT S. TRUMP.
I know that at least one amicus brief in this case, the one filed by Public Citizen Litigation Group had focused on this key point:
So far as we can see, every one of the disclosures about which Robert Trump’s lawyer has complained related to that lawyer’s far more famous client, Donald J. Trump, and says nothing about Robert, the only sibling who has invoked the NDA. Robert Trump lacks standing to enforce his brother’s rights; and my guess is that Donald Trump, although he made no bones about claiming publicly that his niece had no right to publish a book, made a deliberate choice not to expose himself to being deposed in this litigation by being a plaintiff.
The judge seems to have clearly recognized this point.
He also seems to have gotten the message from the appellate court about prior restraint:
Thereafter at the appellate level and in this Court in opposition, besides refuting plaintiff’s application for a preliminary injunction, MARY L. TRUMP’s papers contain a virtual history of First Amendment Rights and “prior restraint” caselaw. What follows herein is a brief synopsis of the law, in no way meant to be a complete recitation of all the caselaw and quotations provided by the attorneys for MARY L. TRUMP. It is proclaimed, the enjoining of the publication of the Book is classic “prior restraint” and cannot be tolerated. The Book is characterized as “political speech”. Procter & Gamble v Bankers Trust Co., 78 F.3d 219 (6th Cir.1996). “Freedom of speech” is invoked N.Y.Times Co. v Sullivan, 376 U.S.254 (1964). Prior restraint is deemed to be unconstitutional. Neb. Press Ass’n v Stuart, 427 U.S. 539 (1976). It is noted that the release of the so-called Pentagon Papers, did not amount to prior restraint. In New York law, under Arcara v Cloud Books, 68 N.Y.2d 553 (1986) if the government is the one seeking to enjoin speech “public injury”, must be shown. Injunctions are seen as “state power”. There is a significant presumption against the constitutional validity of prior restraints, even if it concerns leafletting Org. for a Better Austin v Keef, 402 U.S. 415 (1971). This court finds that Alexander v United States 509 U.S. 544 (1993) dealt with criminal forfeiture of obscene material. It was found that the forfeiture was a criminal penalty, the material was not “taken” on the suspicion of being obscene, before a judicial determination. It was not a “prior restraint”. The papers overlook Near v Minnesota ex rel. Olson, 284 U.S. 697 where the US Supreme Court held that a Minnesota statute that found a newspaper that had published defamatory articles against public officials was a nuisance, and by being deemed a nuisance a court could permanently enjoin that paper from being published, was unconstitutional and further that this, prior restraint would be, “…the essence of censorship”.
He also quotes the judge in the similar case (also by Charles Harder) that tried to block the publishing of John Bolton's book, saying that "the horse is not just out of the barn, it is out of the country."
And finally, the judge adds a fun quip of his own:
Lastly, in the vernacular of First year law students, “Con. Law trumps Contracts”.
Perhaps next time, the President and his family (and his censorship-happy lawyer) will think twice about trying to ban books. Given how many times this sort of thing has happened, though, I doubt much will change.
Earlier this week I wrote about the open letter that was published in Harper's, signed by around 150 very prominent writers/thinkers. My response to it was to heavily criticize both the premise and the specifics in the letter, and to argue that it sought to do the very thing it claimed to be against. That is, it presented itself as support for free speech and counterspeech, and against attempts to shut down speech -- and yet, almost all of the (deliberately vague) examples they pointed to were not examples of shutting down speech, but rather examples of facing consequences from speech and counterspeech itself. The open letter could -- and in many cases was -- read to basically say "we should be able to speak without professional consequences."
Some people liked my response, and some people hated it. The debate has raged on, and that's cool. That's what we should be supporting, right? More debate and speech.
Many people are referring to the letter as being about "cancel culture," even though the letter itself never uses the phrase. But everyone recognizes that the concept is what's at the core of the letter: the idea that someone will say something that "the mob" considers beyond the pale, and suddenly they're "cancelled." We'll get to how realistic that actually is shortly.
But part of the problem with the letter was that it was written in terms that could be used to both condemn overreaction by "mob" voices on Twitter and be used by certain people to say "stop criticizing my bad ideas so vociferously." It provides nothing of consequence to anyone trying to distinguish between the two, and thus when some assumed it was for the purposes of the latter, rather than the former, that should impeach the drafting of the letter itself, rather than its critics. Still, that makes the letter at best useless and at worst, capable of being used not in support of free speech, but as a tool to condemn counterspeech and consequences.
Some well meaning critics challenged my criticism of the post on a few grounds that are at least worth considering. First, was the argument that my post imputes motives to the signatories that were unfair. And I'll grant that criticism. Indeed, quite often lately, I've found that when people leap to assume the motives of others, that's often when debates and discussions go off the rails. I'm just as guilty of that as anyone else, and I should try to be better about that. But there's a flipside to that argument as well, which is that there are people out there who purposely engage in bad faith arguments, and go ballistic when you call them on that, insisting that you can't impute such bad faith into their argument based solely on the words that they spoke (though, often by ignoring nearly all of the contextual relevancy that makes their bad faith evident).
In other words, there certainly are mixed motives among the signatories, and I'd argue that some signed on in good faith in the belief that the world really is being pushed by illiberal forces that are shutting down realms of speech, but also those who just seem to be upset that people are calling out their bad ideas and they're suffering the consequences for it. I focused on the latter, when a more charitable read perhaps should have focused on -- or at least acknowledged -- the former.
And as someone who has spent decades fighting for the importance of free expression, at times at great cost to myself, I have quite a lot of sympathy for what a "good faith" reading of the letter appears to want to say. But I think the letter fails to make its case on multiple grounds, even removing the question of the motives of the signatories.
First, there's the question of how widespread "cancel culture" truly is. I would argue that it exists, but is vastly overstated -- and I'm saying this as someone who has had friends expelled from their jobs unfairly in my view following online mobs ganging up on them. I do believe that, as with any speech, it is possible to use it to galvanize actions I disagree with. But, as I said in my original writeup the details matter. Many of the claims of "cancel culture" remind me of the claims of "anti-conservative bias on social media." Lots of people insist it's true, but when you ask for examples, you get back a lot of platitudes about "look around!" and "it's obvious" and "you're blind if you can't see it!" but rarely many actual examples. And, in the few cases where examples are given, they frequently fall apart under scrutiny.
This is true of many -- though not all -- of the examples of "cancel culture." Last fall, Cody Johnston did an amusing video arguing that cancel culture isn't a thing. I'd argue it is exaggerated, and a few points it makes are also misleading, but on the whole he's got a point. Many of the examples of "cancel culture" are really just the powerful and the privileged receiving some modicum of pushback for horrific actions or statements, that maybe pushed them down a rung from the very top of the ladder, but still left them in pretty privileged positions compared to just about everyone else:
Are there more relevant examples? Perhaps. A lot of people pointed to Yascha Mounk's recent article in the Atlantic entitled Stop Firing the Innocent, and I mostly agree with that article. There are a few examples out there of people being unfairly fired in response to online mobs misinterpreting or overreacting to things. The story of David Shor in that article is certainly one that many people pointed out, and it does highlight what seems like an overreaction (Shor appears to have been fired for merely tweeting a link to a study about historical voting patterns in response to violent v. non-violent protests, and some, somewhat ridiculously, interpreted the conclusions of that study to somehow be a condemnation of some of the current protests). Another set of well known examples comes from John Ronson's book from half a decade ago, "So You've Been Publicly Shamed," which highlights a few cases of arguably unfair overreactions to minor offenses.
But, here's the thing: after lots of people (including Mounk) called out what happened to Shor (more speech), many people now agree that his firing was wrong. And so, the cycle continues. Speech, counterspeech, more counterspeech, etc. Sometimes, in the midst of all that speech, bad things happen -- such as the firing of Shor. But is that an example of cancel culture run amok, or one bad result out of millions? It is very much like our debates on content moderation. Mistakes are sometimes made. It is impossible to get it right every time. But a few "bad" examples here and there are not evidence of a widespread trend.
Also, I'm still hard pressed to see how the level here is any worse than it was a few decades ago. There may be different issues over which public shaming may occur, but it wasn't that long ago that people would be ostracized for suggesting it's okay to fall in love with someone of the same gender or someone of another race. On the whole, I'd argue that we've made a lot of progress in opening up avenues of discussion -- and while we should be concerned about the cases that go wrong, the evidence that there's some big change beyond what has happened in the past are lacking. Indeed, I feel like I remember this nearly identical debate from when I was a kid and the fight was over "too much political correctness," which is a form of the same thing.
I think it's natural for some folks to always feel that they are being treated unfairly for their beliefs, and that people overreact. It's not a new phenomenon. It's not driven by the internet or some other new idea. Indeed, as philosopher Agnes Callard tweeted, you can go back to John Stuart Mill's "On Liberty" to find him discussing "cancel culture" as well:
If you want to understand cancel culture, JS Mill's On Liberty is a pretty good place to start. pic.twitter.com/wBXeFRN4aj
And, again, the details matter, and in many cases the different degrees of criticism and "cancellation" make a huge difference in whether or not the situation was just or not. The circumstances behind each of the stories matter not just in what happened but to whom and why -- and this is why the questions were raised about the signatories and their motives. In some cases it certainly seemed that at least some of them are upset that they are facing more criticism or that they may be excluded from certain privileged platforms. But not being able to publish a nonsense opinion in the NY Times op-ed section is not being cancelled or silenced. It's one thing to have a non-public figure thrust into the limelight and effectively have their career destroyed. I can see how that's a problem. That, however, is entirely different from a very public figure having a bunch of people tell them that their ideas are bad and hurting others.
And while some signatories of the letter insisted to me that they meant the letter to be about those non-public figures, the letter itself does not make that clear and, again, can be used to serve both purposes.
Indeed, a response letter that was crowdsourced and put together by an even bigger list of people (though perhaps without as many "recognizable" names) walks through each of the vague examples in the original Harper's letter and looks at the likely details. And, with the exception of the one example of David Shor -- which it describes correctly as "indefensible, and anomalous," the other examples highlight the issue here: the details have been twisted to hide situations in which people were censured for actually making huge mistakes, not for just taking a contrarian view.
And, once again, that gets at the problem of how awful the letter is: its language can be used both to defend free speech and to paper over truly awful behavior, and while some of the signatories meant it to do the former, it certainly gives the appearance of being used by others to do the latter.
One other criticism I received, along the lines of it being unfair to pin motives of some of the signatories on all of them, was this is the nature of getting a bunch of people to sign onto an open letter. By definition, those things will get watered down as more signatories have opinions, and many people will sign on without necessarily reading through the details. That's not a good excuse. Recognizing the intent of the letter and who you are joining with is part of understanding context. And, as if to prove what a silly criticism that is, take a look again at the crowdsourced letter above, also signed by a bunch of people, and worked on together as a group. It makes key points much more directly and is a much, much, much riskier letter in many ways.
The signatories call for a refusal of “any false choice between justice and freedom.” It seems at best obtuse and inappropriate, and at worst actively racist, to mention the ongoing protests calling for policing reform and abolition and then proceed to argue that it is the signatories who are “paying the price in greater risk aversion.” It’s particularly insulting that they’ve chosen now, a time marked by, as they describe, “powerful protests for racial and social justice,” to detract from the public conversation about who gets to have a platform.
It is impossible to see how these signatories are contributing to “the most vital causes of our time” during this moment of widespread reckoning with oppressive social systems. Their letter seeks to uphold a “stifling atmosphere” and prioritizes signal-blasting their discomfort in the face of valid criticism. The intellectual freedom of cis white intellectuals has never been under threat en masse, especially when compared to how writers from marginalized groups have been treated for generations. In fact, they have never faced serious consequences — only momentary discomfort.
I think that Jill Filipovic's response to the letter may be most aligned with my thinking: that cancel culture is overstated, that some of the signatories of the letter were signing on because they're upset that a wider public with a voice is criticizing them, but that there are at least a few cases of egregious overreaction to online mobbing, and sometimes that involves the loss of a job. Her argument makes some amount of sense -- that you shouldn't be fired for your bad opinions if your bad opinions have nothing to do with your job:
So yes, most of the “cancel culture” complaints are overwrought. On the long list of things worth caring about, cancel culture is very low down. Criticism is not cancelation. Conflict is not censorship. On all of these issues, the right is far, far worse (how many voices opposing the party line are at Fox, or on right-wing websites, or speaking at conservative religious colleges?). Often, the right uses this narrative of the “intolerant left” to cover for its own misdeeds and groupthink, and it’s an underhanded, bullshit tactic that too many progressives fall for.
But.
It is also true that there have been instances — many instances — where people have been fired from their jobs (and not just in media) for holding opinions that have nothing to do with their ability to perform said job, and who are fired entirely because an employer doesn’t want the PR headache.
Of course, even that is not always so black and white. If your opinions create larger problems for a company -- including costs that go beyond just giving PR a headache -- does it really make sense to just say that the companies need to shoulder that burden? But I do think it's fair to try to explore context more deeply. What is the context in which the statements are being made -- and who is making them? Is it a situation that involves speaking truth to power? Or is it a situation that involves using a position of privilege to keep down the less fortunate?
That is to say, as with so much, it's complicated.
And part of that complication is not just that different people have different motives and that mistakes are made, but that the level of "penalty" people receive differs quite a bit as well. If the original letter had legitimately focused exclusively on some of the more significant consequences, and could clearly demonstrate were out of bounds, it might have a good point. But it lumps "public shame and ostracism" in the same category as more significant retribution. And that was part of what made me think the original letter was so lame. Sure, some people were signing onto it to highlight those few egregious cases (though, again, it's unclear that those situations are new or any different than in the past), but the letter lumped in a much wider variety of things.
Another part of the complication is that as times change, our understanding and sensitivities to certain ideas shift as well. In my original piece I argue it's not evident from where I sit that the space in which ideas can be discussed is shrinking. There are so many things today that can be seen, discussed, and read that were impossible to get out there just a few decades ago, and that's incredible. That said, it is true that there are certain things that used to be more commonplace that are now much more sensitive areas. But a big part of that is actually our recognition that things which used to be considered okay (e.g., casual bigotry) are no longer considered okay. And a huge reason those are no longer considered okay is that we've opened up this wider "marketplace of ideas" to more voices, often from folks who were previously unable to share their points of view, and their persuasive speech has convinced many that what used to be deemed okay is not and, in fact, never was.
Finally, I'd argue that while it's possible that some people make innocent mistakes, and that we should try to take into account whether or not saying a truly dumb or hurtful thing was an uneducated mistake or outright maliciousness, we can and should be able to judge that by what happens next. That is, I agree with the letter writers that people shouldn't lose their job over a single innocent tweet taken out of context. But it's much, much harder to make that case for someone who doubles down, refuses to learn, refuses to investigate why their words are causing so much pain and hurt, and then attacks those who are trying to educate them on their truly awful stance.
So if I were to try to rewrite the letter to make the actual point that the authors seemed to want to make, I'd probably go with something like the following:
Free speech is a key foundational idea and value which we support. Along with that, though, we recognize that speech has consequences, and some of those consequences may include counterspeech that may lead to action. We recognize that persuasive speech that leads to action may be for things we agree with and also for things we disagree with. We are concerned about situations in which the actions and consequences of speech may unfairly and disproportionately punish people for innocent transgressions -- and how that may create unnecessary chilling effects that run counter to the ideal of free speech. Yet at the same time we recognize that this is complicated, and situations may appear differently to different people.
The world is a complicated and ever changing space. Some of that change is for good and some is for bad. There are people with all kinds of motivations out there, and it is all too easy to leap to the worst conclusions about motivations. We should all strive to be cautious in assigning motive, and we should investigate why someone said what they said before leaping to conclusions or rushing to condemn them to the level at which they'd face reprisal -- while also recognizing that there are those out there who will argue in bad faith. Distinguishing between the two is often difficult.
In many ways, the world is more free and open for debate today than in the past -- new and previously unheard voices are being heard and promoted and celebrated for the first time and we should encourage that. This open debate and discussion has also resulted in a changing societal consensus on what is, and what is not, appropriate. Quite frequently this is also for good. We are becoming more sensitive to the harms that people have faced and are reckoning with all of those, thanks in part to the robust debate and discussion about these ideas.
At the same time, in our ongoing and righteous zeal to revisit areas that were previously overlooked and underexplored, there are times when people may go too far. There are times when the nuance and details and context are not initially clear, and some people -- including ourselves -- may overreact. That overreaction often leads to consequences which, when the full situation is explored and understood, seem unfair. We should seek to be aware that this may happen, and try to avoid it. Furthermore, we should recognize that as fallible as humans are, we will sometimes discover this too late, and should seek to rectify it when we do.
The details will always matter. We should not assume simplistic narratives all of the time, when often there are mixed motivations and complex factors and variables involved. There may be situations that appear similar on the surface, but upon deeper exploration turn out to be quite different. We should be willing to explore those details and to recognize that, sometimes, people we like will face consequences for their speech for an extended pattern of truly reprehensible behavior.
However, we should leave space open for people to learn and to grow. We should recognize that a single misdeed may be innocent and should treat it as such. We should see how people respond to such feedback. At the same time, we should also recognize that a pattern and practice of questionable and hurtful behavior may suggest a person who is deliberately, and in bad faith, seeking to game the system.
This starts with us. We, who have signed this letter, have not always lived up to these ideals either. Everyone will make mistakes sometimes, and we hope to learn from them as well. We are excited about the power of new voices to be heard and join the conversation, and realize this often challenges our strongly held beliefs. We hope that, in the spirit of learning from these new voices that criticism of other views will also take on a recognition that there is room to understand and to change -- or, on the flipside -- to build stronger arguments to the contrary.
I think that approach would have made the point much better. It would acknowledge that things are often more complicated than they appear on the surface, that there are different motivations behind actions, and that sometimes speech does lead to consequences that not everyone will agree with. But, most of all, that approach acknowledges that everyone makes these kinds of mistakes at some point. The original letter framed the issue as if the signatories were the righteous believers in free speech, against the "others" out there trying to shut them down -- without any recognition that some of the signatories and the letter itself often seemed to be advocating for the silencing of others as well.
In the end: free speech is important, but like with so many things it's more complicated the deeper you explore, because free speech itself has consequences, and we should strive to understand the impact of our speech, to learn, and to expand our own thinking over time as well.
The national security law the Hong Kong government passed solely with the intent of shutting down protests and local dissent is amazingly bad. It criminalizes secession, subversion, terrorism, and foreign interference. Violators of any of these purposely vaguely defined terms face potential life imprisonment.
Demonstrators protesting against China's refusal to respect the rights of Hong Kong residents -- something it agreed to do when it took possession of the region in 1997 -- have already begun their self-censorship, unsure what words or actions could trigger criminal charges. Prominent pro-democracy figures are fleeing the country and the Hong Kong government is ridding its libraries of pro-democracy writings.
The new law grants broad new powers to security forces, including local police. Warrantless searches are no longer the exception. Police officials can approve "urgent" warrantless entry by officers to search for "evidence" of the new list of crimes. Forfeiture and/or freezing of assets is also in play, along with the revoking of passports when someone is suspected of violating the law.
[T]he commissioner of police is to be given powers to control the dissemination of information online, when they have “reasonable grounds” to suspect such information may lead to national security crimes. Such enforcement may require a relevant publisher, platform service provider, hosting service provider or network service providers to remove information that the authorities deem a threat to national security. They may also restrict or stop anyone from accessing to such platforms.
This makes operating any internet-based service inside Hong Kong untenable. And that's only the beginning of the list of demands. Officers can also seize electronics to "remove information," which means servers can be taken offline at a moment's notice, rendering tons of legal content suddenly inaccessible.
Any identifying information ISPs have gathered on their users must be turned over to police on demand. Even scarier, the law contains a mandate compelling service providers to provide "decryption assistance" whenever the government asks for it.
Failing to comply with these demands will result in publishers, service providers, and communications platforms being fined and/or their employees jailed.
This doesn't just affect Hong Kong-based services and publishers. The law says police can target content posted by non-residents and demand takedowns from foreign services or ensure the content is made unavailable to Hong Kong residents. The extraterritorial aspects of the law will only be as effective as those willing to comply with Hong Kong law enforcement. So far, two encrypted messaging services have already said they're not willing to cooperate with the government's demands.
On Monday, Facebook and its messaging service WhatsApp said they were suspending requests from the Hong Kong government and law enforcement authorities for user information. Messaging app Telegram also told HKFP a day before that it will temporarily refuse data requests from the city's authorities until there is international consensus over the ongoing political changes.
China is expanding its great internet firewall around Hong Kong, but it's building it from the inside out, turning dissent and the residents' desire to live under a democracy into criminal acts and allowing the police to decide what speech is acceptable.
There's a slightly bizarre Letter on Justice and Open Debate that Harper's Magazine is publishing, signed by a long list of famous people (many of whom I respect, and plenty of whom I think are terribly entitled wannabe "controversial" intellectuals who are really just assholes). The framing of the letter is one I've heard quite a lot of late: concerns that there is some sort of "illiberal attack on free speech," in which certain individuals and their ideas are no longer even allowed. It's the more intellectual argument against so-called "cancel culture." And, yes, there are examples of people being shut down for expressing their ideas, but it is much less common than people would have you believe. In many cases, what people are complaining about is not that their speech is being shut down, but that they are facing consequences for their speech being ridiculous.
There are few things more misunderstood than the distinction between speech and consequences. Indeed, all too frequently people argue that consequences from speech are attempts to stamp out free speech, and just as common is the idea that actual attempts to silence free speech (e.g., SLAPP defamation lawsuits) are just "consequences" of speech. Neither is accurate. Attempts to stop free speech are attempts to use state power (such as the courts) to stop people from being able to express themselves. But people saying your ideas are bad and venerable institutions shouldn't amplify them is not an attack on free speech or open inquiry. It's a recognition that not all ideas are equal, and not all ideas deserve the kind of escalation and promotion that some speakers wish they had.
This goes back to two recent discussions we've had here on Techdirt. First, a discussion about the differences between moderation, discretion, and censorship along with a followup on editorial discretion, and the debate over the NY Times publishing Tom Cotton's op-ed about sending in the military in response to the possibility of violence at mostly-peaceful protests. There were a bunch of people who responded to criticism of the Times by claiming it was an attack on speech, which was utter nonsense. If the NY Times chooses not to publish something (as it does every damn day) that's not censorship and it's not shutting down debate of difficult ideas. It's just editorial discretion. The fact that the NY Times eventually forced out the editor who made the bad decision to publish Cotton's piece was not an attack on free speech but consequences for doing a bad job. That's consequences for speech, and not censorship.
Back to the open letter at hand. It seems to confuse these concepts greatly. I agree that we should be vigilant and concerned about attacks on free speech, but almost nothing described in the letter is an actual attack on free speech.
The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted.
First off, hogwash. There are more places and ways to speak your mind than ever before, and the free exchange of information and ideas is more available and accessible to all sorts of voices than ever before in history. The idea that it's "more constricted" has no basis in reality. There are so many different ways to get ideas out there today, and that has actually enabled tons of previously suppressed voices to speak out loudly and clearly -- even if sometimes it's to point out that the supposed wisdom of others is anything but. There is no real evidence of any "constriction." There is evidence that many people are utilizing their newfound voices and ability to express themselves to show that the emperor has no clothes when it comes to some of the ideas presented by the old guard.
While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.
With so many famous and serious authors signing onto this letter, I have to call out the use of the word "censoriousness". This word is commonly misused and misunderstood. It does not mean, as many assume, prone to censorship. That word is "censorial." Censorious actually means hypercritical of others, not trying to force them into silence. Given the literary nature and stature of the signatories of this letter, I would assume that those who wrote this (1) know this and are actually using the word correctly, but know full well that (2) most readers will assume the other, mistaken, interpretation of the word.
As to the larger point of this sentence, it is still, itself, quite problematic. First off, "public shaming" and "ostracism" are literally examples of counterspeech and open debate. In other words, this sentence appears to be complaining about the very thing the authors claim to be supporting: counterspeech. Public shaming and ostracism are the consequences of speech that a group feels is ridiculous, problematic, dangerous or otherwise not worth spreading widely. That's the opposite of being censorial. It is the opposite of shutting down speech. It is literally people speaking up to explain why those who hold odious views should be shamed for those views. It is a form of counterspeech and consequences from that counterspeech. On top of that it is an attempt to encourage bodies that host, promote, and elevate speech to think carefully about which speech deserves it.
That is quite different than actually censoring such speech and suggesting that no one should ever be allowed to say what they want anywhere. It is saying if you have dumb ideas, people may think you're dumb, and may ask why others are elevating those dumb ideas. The protests are not to say you can't speak, but rather to ask "why is this speech being held up as insightful or praiseworthy?"
It is only on the very final point of this sentence that I agree with the authors. It is, indeed, a problem when we try to dissolve complex policy issues "in a blinding moral certainty," and yet... that also seems to be exactly what the authors of this very letter are doing. They are saying that it is morally unconscionable that some of them and their friends have been censured (not censored) for their non-serious ideas. And that is fundamentally a refusal to recognize the complexity of how speech, counterspeech, and consequences work with a "moral certainty" that their own august voices being shunned and shamed must be bad.
We uphold the value of robust and even caustic counter-speech from all quarters.
Unless it includes public shaming or consequences for your in-group speech, apparently. Indeed, this is the most frustrating thing about this letter. It seeks to do to others exactly what it, itself is complaining about.
But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.
Yes, via counterspeech. And, again, the complaint is not that one is allowed to speak wacky ideas, but rather that those ideas are being hosted, elevated, or held up as special when they are in fact trash.
More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms.
This is a complaint about consequences of speech, not speech. It is a complaint about how people react to the counterspeech the authors falsely claim to be so supportive of.
Then comes the list of examples -- none linked, none with details.
Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes.
With the possible exception of public schools (which have more restrictions as government entities), all of these appear to be about the actions of private organizations making decisions based on counterspeech, and presenting speakers with the consequences of speech that many have deemed (often for very good reasons, though not always) unworthy of praise, promotion or elevation.
Read that sentence again carefully. What the signatories here seem to be requesting is not more free speech. Nor is it more counterspeech (indeed, it's an attack on counterspeech). They appear to be asking for freedom from consequences for their own speech. Please don't publicly shame us or make our bosses rethink our employment for our speech, no matter how bad it is. That is not a pro-free speech stance. It is a anti-consequences stance, and it's truly disappointing to see many of the signatories endorse this.
Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal.
The first clause of this sentence is doing a lot of heavy lifting. The arguments matter. The arguments are the counterspeech. The arguments are the speech that the signatories of this letter seem so uncomfortable with. The arguments have been persuasive. That's why these signatories are so upset. The counterspeech has been effective. It has resulted in consequences as institutions have recognized that maybe they shouldn't be employing people with bad ideas, or promoting and elevating those ideas.
And, again, it is fundamentally ridiculous and ahistorical to argue that the boundaries of what can be said have narrowed. Honestly, you do not have to go back very far to find examples of topics of conversation that were fundamentally taboo and are now widespread and common. And many of those new ideas have resulted in massive, important social change: civil rights and civil liberties now exist in more meaningful forms than they ever did before because of people speaking out. The ability of LGBTQ+ people to marry whom they love coming just decades after it was literally illegal to do so is a result of more people being able to speak out. The ability of the Black Lives Matter movement to rally so many people in support of their cause and pull the curtains back on centuries of institutional, systemic racism is a result of more people being able to speak out.
The idea that there's been some narrowing of ideas is nonsense. These people are getting criticized for their bad ideas and their response is to play victim and pretend that the space in which they can speak has narrowed. They're full of shit.
We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.
Oh, come on. Spare me the sob story. Go down the list of signatories. Many are incredibly famous, are regularly published in the top publications, and often appear on TV. They have no fear for their livelihoods. And trust me, whatever "contrarian" ideas they claim they're not able to share are, in fact, still being shared widely. There are all sorts of ways in which they get to express their viewpoints, and they do. Getting criticized for those ideas is counterspeech -- the the thing they claim to be supporting. They're just playing the victim.
This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation.
If the problem was a repressive government actually engaged in censorship, I would agree wholeheartedly. Yet, note that in their list of examples they do not provide a single one that involves a repressive government. Rather they only present examples of private entities making decisions (consequences) based on counterspeech. Counterspeech which these cowards pretend they support.
The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.
We agree. And yet, the only ones trying to silence anyone here are those in this letter, saying that public shaming is somehow beyond the pale. It's almost as if they don't really want "argument and persuasion" while pretending that's exactly what they do want. If they believe that the public shaming (counterspeech) is bad, then they should go right ahead and use argument and persuasion to show why it's actually bad, without claiming it's an unfair attack on their speech. Inasmuch as this letter attempts to do so, it fails. They should recognize that if their arguments suck -- as they often do -- people nowadays are less afraid to call that out.
We refuse any false choice between justice and freedom, which cannot exist without each other.
A meaningless, empty sentence.
As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes.
Indeed. On this I agree. But if you look around, there are so many wonderful experiments and plenty of risk taking going on. More than ever before. That's not the problem. The problem is this privileged bunch of elites are upset that people are now actually willing to call out their bad ideas as bad.
We need to preserve the possibility of good-faith disagreement without dire professional consequences.
And that gives away the ballgame: "we want to present bad ideas without losing our readers or our jobs." That's just not how it works. These people have spent their lives protected in ivory towers, and are now facing real free speech from people who are outside of their privileged bubble, and are freaking the fuck out about it.
If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us.
Sure, but stop pretending consequences and counterspeech are anti-speech. You're not actually the brave truth tellers you want to be. You're coming off as privileged elitists who are being challenged on ideas for the first time. The signatories are so quick to clutch pearls about people actually calling out bad ideas as bad, and saying that maybe institutions who have editorial discretion should be a bit more discretionary, that they seem to think facing consequences for speech is somehow anti-free speech. It's not.
Hong Kong was handed back to China in 1997 with the understanding the Chinese government would not strip away the rights granted to Hong Kong residents prior to the handover. The Chinese government has no intention of honoring that agreement, which has prompted months of protests.
The Hong Kong government has consummated its acquiescence to the Chinese government with the adoption of a harsh law that directly targets dissent and protest under the guise of securing the nation. Hong Kong residents weren't informed about the contents of the new law until after it was passed and adopted. The BBC runs down the key aspects of the new law -- none of which appear to respect the rights supposedly granted to Hong Kong residents.
Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a minimum sentence of three years, with the maximum being life
Inciting hatred of China's central government and Hong Kong's regional government are now offences under Article 29
Damaging public transport facilities can be considered terrorism
These are all things the Chinese government claims must be implemented to secure the nation. And these are all things that conveniently allow the government to imprison Hong Kong residents. It also allows them to target dissidents and opponents abroad, thanks to the government granting itself extraterritorial reach.
This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.
The law also says residents found guilty of these crimes cannot run for public office. This seems unnecessary, especially as many vocal anti-government activists have either chosen to go silent or leave the country completely.
The court process for adjudicating these cases has been streamlined to allow the Chinese government to imprison as many protesters and activists as possible. The chief executive of Hong Kong -- who has already gone on record as supportive of the "long overdue" law -- can appoint judges to oversee these trials. The Chinese government retains the option to take over prosecutions in cases where it feels local prosecutors just aren't trying hard enough. And decisions made by the newly-formed "national security commission" cannot be challenged in court.
Reactions have been immediate. Pro-democracy books have been pulled from libraries by the Hong Kong government in order to review them for violations of the new law. And protesters are now carrying blank signs, since the law makes the existence of any anti-Chinese government words a potential violation of the new law, possibly putting protesters in line for life in prison.
No one seems to be immune from the new law. The Hong Kong police apparently visited a restaurant to warn it of a violation of the new law. It responded by covering its menu and windows with blank Post It notes.
A girl uses a blank piece of paper yesterday as a protest sign, as she wasn’t sure what constitutes breaking the NatSec Law.
Today, eateries are removing posters and replacing them with blank memo notes after HKPF visited a restaurant in Shau Kei Wan warning of a NSL violation. pic.twitter.com/3TLyfI9JIx
After months of battling a rebellious region, the Chinese government has placed Hong Kong firmly under its control. There will be no more "one country, two systems." The only system the Chinese government is willing to back is its own. With countries like Australia and the UK opening their doors to Hong Kong citizens wishing to flee, the government may not have nearly as many people to place under its jackboot. But those who choose to stay run the risk of being jailed for years for complaining about a government willing to jail people for complaining.
Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.
In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.
S&S is not a party to the settlement agreement. The only basis offered by the plaintiff
to extend the temporary restraining order to S&S are the allegations that S&S “intends to act” on Ms.
Trump’s behalf in causing the publication of the book and that S&S is acting at Ms. Trump’s
direction and in concert with her. However, these allegations are conclusory and not supported by
any specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquish
any of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at
257). Since the predicate for the plaintiff’s application for a temporary restraining order is the
existence of the confidentiality provision of the settlement agreement (and no alternate basis for an
injunction against Ms. Trump is either suggested or apparent), and S&S is not a party to the
settlement agreement, this Court perceives no basis for S&S to be specifically enjoined.
However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against "any agent" acting on a signatories' "behalf" may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:
While the plaintiff has alleged, in effect, that S&S is Ms. Trump’s agent, the
evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to
succeed in establishing that claim. So, while the plaintiff is entitled to have the temporary restraining
order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.
So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.
It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:
The passage of time and changes in circumstances may
have rendered at least some of the restrained information less significant than it was at the time and,
conversely, whatever legitimate public interest there may have been in the family disputes of a real
estate developer and his relatives may be considerably heightened by that real estate developer now
being President of the United States and a current candidate for re-election. Drawing the appropriate
balance may well require in camera review of the book sought to be enjoined. Stated differently, the
legitimate interest in preserving family secrets may be one thing for the family of a real estate
developer, no matter how successful; it is another matter for the family of the President of the United
States.
So... the fight to publish the book will continue next week.
One element in this case that I haven't seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump's brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He's using the president's own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.
First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any "damages" from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above -- saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn't think a judge would engage in prior restraint either, and that turned out to be wrong.
