NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

from the that-won't-last dept

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.

This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

Mary Trump's lawyer, Ted Boutrous (who knows this stuff better than you do) says that they'll be appealing. According to the Courthouse News link above:

“The trial court’s temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment,” Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. “We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.”

The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:

“The actions of Mary Trump and Simon & Schuster are truly reprehensible,” Harder said, referring to the book’s publisher.

Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is "reprehensible" is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.

He went on:

“We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump’s breach of contract and Simon & Schuster’s intentional interference with that contract,” Harder added. “Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.”

Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

Filed Under: 1st amendment, book, charles harder, donald trump, mary trump, prior restraint, robert trump, ted boutrous, temporary restraining order
Companies: simon & schuster

Brazil's Proposed 'Fake News' Law Says Internet Users Are Guilty Until Proven Innocent, Demands Constant Logging From ISPs

from the riskiest-of-clicks dept

Brazil's legislature is set to vote on its proposed "fake news" law. This law would criminalize speech the government doesn't like, under the handy theory that anything it doesn't like must be "fake." There was some mobilization on this not-even-legal-yet theory back in 2018, ahead of an election, when the Federal Police announced it would be keeping an eye on the internet during the election process. There are plenty of ways to combat misinformation. Giving this job to people with guns is the worst solution.

The EFF has put together a summary of the worst aspects of the proposed law. And they are the worst. First and foremost, lawmakers have realized a law that targets users the government can't identify is completely worthless. Brazilians will pretty much need a license to communicate with others -- something achieved by turning platforms and app makers into bouncers at the internet nightclub.

[T]he bill (Article 7, paragraph 3) requires “large” social networks and private messaging apps (that offer service in Brazil to more than two million users) to identify every account’s user by requesting their national identity cards. It’s a retroactive and general requirement, meaning that identification must be requested for each and every existing user. Article 7 main provision is not limited to the identification of a user by a court order, also including when there is a complaint about an account’s activity, or when the company finds itself unsure of a user’s identity.

No doubt legislators will say comforting things about protecting anonymous speech as the bill is debated. But those platitudes will be emptier than usual. Users are permitted to use pseudonyms. But they're also required to provide their legal identities to these platforms.

Brazilians can't bypass this identification process by using only phone apps to communicate. SIM card registration has been in place since 2003 and the proposed law expands on that, requiring private messaging apps to delete accounts that are no longer linked to registered phone numbers.

Since the law is triggered when alleged fake news reaches (a very low) critical mass, social networks and messaging apps are required to log pretty much everything users do, just in case. Since it's impossible to predict what will go viral, logging will be continuous.

These obligations are conditioned on virality thresholds and apply when an instance of a message has been forwarded to groups or lists by more than 5 users within 15 days, where a message’s content has reached 1,000 or more users. The service provider is also apparently expected to temporarily retain this data for all forwarded messages during the 15-day period in order to determine whether or not the virality threshold for “massively forwarded” will be met.  

This provision basically makes all users guilty until their inability to find an audience proves them innocent. The safest thing for tech companies to do is log continuously and retain forever, since there's always a chance of sleeper hits reaching a broad audience weeks or months after the content was originally posted. The law mandates a four-month minimum for retention. It does not place a limit on maximum retention length.

The law also mandates that this massive collection of info be available remotely 24/7 for perusal by government regulators. This massively increases the chance of a harmful data breach by expanding the attack surface to every user and every government employee granted access privileges. And if there's an opportunity for abuse by government employees -- and there is -- it will be abused.

This logging and demands for identification from messaging/social media users obviously makes any assurances about respecting users' privacy blatantly false. The proposed law pretty much renders the country's data privacy law -- passed in 2018 -- irrelevant. The law can't protect internet users from careless logging and extended retention of user info -- not when the government's demanding service providers and social media platforms do exactly this to aid in the regulation of third-party content.

Then there's this problem: even if the law fails to pass, the Federal Police have made it clear they're going to punish people for spreading "fake news."

A top police official just yesterday warned that, absent a new law, they will invoke the authorities of one of the dictatorship era’s most repressive laws: the so-called Law of National Security, which contain deliberately vague passages making it a felony to “spread rumors that caused panic.”

The government will be in the censorship business with or without the new law. Since it obviously desires to be more fully involved in the business of censoring, the law will likely pass, since it will give the police (and others) a whole lot of data and PII to work with. The current leader of the country bearing the First Amendment brand declares news he doesn't like to be "fake." We shouldn't expect anything better from other countries which have engaged in open censorship of government criticism in the past, no matter what niceties are said about protecting the public from misinformation.

Filed Under: anonymity, brazil, fake news, free speech, guilty until proven innocent, presumption of guilt, privacy

German Minister Files Criminal Complaint Against A Journalist Who Said Police Officers Are 'Trash People'

from the under-what-authority-exactly? dept

Germany's speech laws are bad and they're getting worse. Ignoring the rights the government has (apparently provisionally) extended to citizens, the recent years have seen a lot of claw-back by this same government as it seeks to regulate more kinds of speech, including the ultra vague "hate" variety.

The laws place more pressure on platforms to be responsive to "eye of the beholder"-type demands to remove "hate speech." This, of course, leads to over-blocking. Every so often, a different branch of the government is asked to weigh in. And when it does, it finds the supposedly criminal content isn't actually criminal.

As is the case with most vague speech regulations, collateral damage is expected. It's so expected it almost appears to be acceptable to regulators. But even the vaguest of speech laws can't explain what's happening here.

German Interior Minister Horst Seehofer announced Sunday that he will launch a criminal complaint into the daily newspaper Tageszeitung (commonly referred to as taz) after it published a column criticizing the police.

Seehofer cited the anti-police violence in Stuttgart on Saturday night as an example of why such rhetoric should be cracked down on.

Citing anti-police protests as a reason to engage in the policing of speech police don't like isn't really going to endear the government to the people already angry at it for letting local law enforcement become the unaccountable mess it is. While the Interior Minister seems pretty upset journalists are mocking police officers, he apparently can't be bothered to cite the violation he's seeking to charge these journalists with.

Here's what the journalists said in an article the newspaper has since apologized for publishing:

The article in question was published on June 15 with the headline "All cops are berufsunfähig (incapable of working)" — a play on a slogan used by groups protesting police violence — by columnist Hengameh Yaghoobirafah.

The article discussed the argument for abolition of the police and suggested that, since they are "trash people," they instead could be "thrown in the landfill."

All in all, pretty mild stuff, especially when placed in the context the Interior Minister chose to frame his frame-up of this journalist. Calling cops "garbage" is pretty low on the invective scale and there doesn't appear to have been anything in the article suggesting people should engage in violence against cops, no matter how "trash" they are. When there are actual riots underway, it doesn't make much sense to claim a few carelessly used words are worthy of a criminal prosecution. And there doesn't appear to be anything in Germany's speech laws that would justify a criminal complaint being brought.

Free speech isn't all that free in Germany. But there are some protections in place for journalists. And nowhere in the laws does it say criticizing the government is a criminal offense. Maybe the Minister thinks this is "hate speech," but that's supposed to be reserved for the targeting of races, religions, and sexual orientation. It's not supposed to protect the government from being called "trash." Or maybe the Minister is going to claim it's a form of terrorism as he stares deeply and thoughtfully into the rear view mirror containing a single violent riot that spun out of a massive police "drug check" at a party in Stuttgart.

Whatever the case is, it would seem it's headed for a dismissal once a judge gets to take a look at it. But until that happens, a few journalists are going to see their lives upended because one government official has been offended by proxy. That's a trash move, Minister.

Filed Under: criminal complaint, free speech, germany, hate speech, horst seehofer, police are trash
Companies: taz

Just Like Every Other Platform, Parler Will Take Down Content And Face Impossible Content Moderation Choices

from the this-is-not-the-panacea dept

Like Gab before it, the hot new Twitter-wannabe service for assholes and trolls kicked off of Twitter is Parler. The President and a bunch of his supporters have hyped it up, and the latest is that Senator Ted Cruz (and Rep. Devin Nunes) have recently joined it, and like others before them they have hyped up the misleading claim that Parler supports free speech unlike Twitter. Cruz -- who has been spewing blatantly false information about "anti-conservative bias" on various internet platforms -- even announced his move to Parler... on Twitter, which does not seem to be moderating him at all. Cruz's overwrought speech is full of nonsense that has come to typify his pathetic attempt to win fans among Trump's base.

But, I did want to take a closer look at the claims that Parler supports free speech, because it does so in basically the same way every other platform -- including the way Twitter, Youtube and Facebook do: by saying that they can remove your content for any reason they want. Their user agreement includes this:

Parler may remove any content and terminate your access to the Services at any time and for any reason or no reason, although Parler endeavors to allow all free speech that is lawful and does not infringe the legal rights of others. Any invitation made by Parler to you to use the Services or submit content to the Services, or the fact that Parler may receive a benefit from your use of the Services or provision of content to the Services, will not obligate Parler to maintain any content or maintain your access to the Services. Parler will have no liability to you for removing any content, for terminating your access to the Services, or for modifying or terminating the Services, at any time and in any way and for any reason or no reason. Although the Parler Guidelines provide guidance to you regarding content that is not appropriate, Parler is free to remove content and terminate your access to the Services even where the Guidelines have been followed.

Parler should be thankful that it has Section 230 of the CDA to make that possible. And it should probably be ticked off at Cruz, who has been among those threatening to revoke Section 230.

My favorite line is the last one, which says that it can remove content or terminate your account even where you have followed its Guidelines.

Under various proposals to reform Section 230, this would go against the law, but Parler is actually doing the right thing here. If you only limit your moderation powers to what is explicitly in your terms, then people will game those terms and cause problems on your platform. You need the flexibility to deal with bad actors -- the flexibility that Section 230's current structure provides.

And while Parler's Community Guidelines are written in a manner that makes it look like they're mimicking 1st Amendment jurisprudence, that's a trick they're playing, because the specifics do not match the reality. First, at the very top, they say that no spam is allowed:

Spam is repetitive content that does not contribute to the conversation. It often comes in the form of multiple posts of repeating content that offer little to no value to the community and platform at large.

And the guidelines tell users:

• Avoid repetition in the comment section of posts. Spam applies more heavily to comments then posts.
• Do not use language/visuals that are meant to take advantage of others on Parler.
• Avoid language/visuals that solicits advertisements on other’s posts.

Of course, all of that is 1st Amendment protected speech.

Parler also bans sharing "rumors about other users/people you know are false." And while they couch this as being the same as defamation, the legal standards for defamation go way beyond that. Banning "rumors about other users/people you know are false" will create judgment calls by Parler in determining what stands and what doesn't.

In the section meant to mimic the Supreme Court's (mostly obsolete) "fighting words" doctrine, Parler again says that plenty of 1st Amendment protected speech is barred from its platform.

Any direct and very personal insult with the intention of stirring and upsetting the recipient

Of course, intention is subjective, meaning again that Parler would need to make judgment calls.

Parler, like Gab before it, bans pornography, falsely claiming:

Pornography is considered indecent according to clauses defined by the FCC.

The FCC polices public airwaves, which come from publicly owned, but corporate-held, spectrum. The FCC's determination of indecency has no bearing on the internet (and does have some 1st Amendment issues as well). Parler's definition of porn is... really weird.

Printed text description, or visual material containing the explicit description or display of sexual organs or activity. Porn must meet ALL the following conditions:

• Porn does not require nudity
• Can be an image, painting, art, or description
• It must be morbid or degrading in nature (Prurient)

Of those "conditions" only the last one is actually a "condition." If the others are conditions, does that mean if it does have nudity, it's no longer porn?

There's a lot more where this comes from, but almost all of it appears to be written by someone who did a Wikipedia search on exceptions to the 1st Amendment, but didn't bother to talk to a 1st Amendment lawyer to understand what those exceptions actually meant.

Still, there is a larger point in all of this, which is something we've tried to explain to people over and over again. There is no such thing as not moderating content. First of all, some content moderation is required by law -- especially things like child sexual abuse material and copyright infringement. Second, there are international issues that Parler will eventually need to deal with, even if it's an American company. Already, some have pointed out how Parler's user agreement might put users on the legal hook for international issues. Third, without content moderation, your site gets filled with junk, spam, and abuse. Even Parler seems to implicitly recognize this with its terms.

There have been plenty of sites that have sprung up over the years that first promise no moderation until they realize what that means in practice -- and then suddenly they realize that some level of content moderation is a necessity. Now, Parler may take a more hands off approach than others, and that's great. Different approaches and different levels of experimentation should be encouraged. But the idea that Parler is somehow taking a substantially different approach than a site like Twitter is nonsense.

On a related note, Parler's sudden burst of attention and usage should serve to highlight another nonsense talking point from the world of Trump: that the existing large platforms (namely: Facebook, Twitter, YouTube, Instagram) and their content moderation decisions are somehow a form of censorship or control of the "public square." The great thing about the internet is that it's still (mostly) open for other entrants to try to build a better mousetrap. So the idea that the other platforms need to be hit with regulations over their content moderation practices seems odd when Parler itself has demonstrated that it's totally possible to build competitors.

Filed Under: 1st amendment, content moderation, devin nunes, free speech, porn, section 230, spam, ted cruz
Companies: gab, parler, twitter

Charles Harder Tries And Fails To Censor Another Book About His Most Famous Client, The President

from the sorry-charles dept

Lawyer Charles Harder (who, yes, was once the lawyer for the guy who sued us) has built up a nice reputation now of the lawyer who tries and fails to stop people from saying stuff that upsets President Trump. You may recall that Harder, representing the president, threatened former Trump adviser Steve Bannon for his supposed quotes to author Michael Wolff. More recently, Harder, representing the Trump Campaign, has sued the NY Times, the Washington Post and CNN over various articles (often opinion pieces) that portray the President negatively.

His latest move, representing Donald Trump's brother, Robert Trump, is to sue Mary Trump, Donald Trump's niece, over her new book that is quite critical of the President. The argument in the lawsuit? That Mary Trump was violating a confidentiality clause that was part of the settlement of a legal dispute over the estate of Fred Trump -- another of Donald's brothers, and Mary's father. It took all of about a day for the judge to reject the lawsuit, basically because Charles Harder messed up the filing.

At the outset, the court finds that the submissions suffer from several improprieties. First, a preliminary injunction is an order obtained by motion in a pending action or special proceeding... The caption utilized refers to a probate proceeding which terminated in 2001 by entry of a decre and is, therefore, non-existent. Consequently, a motion seeking injunctive relief may not be made in that proceeding. To the extent the accompanying petition, bearing the same caption, is supposed to provide the jurisdictional basis for said motion, it cannot do so as that petition is fatally defective.

Beyond that, they picked the wrong forum for this request:

Insofar as the petition seeks a declaratory judgment, this forum is presumptively improper as such relief should be obtained by means of an action in the Supreme Court and not a special proceeding in this court....

Of course, it appears that Harder is planning to just keep going and try again by fixing his mistakes:

“Today, the Surrogate’s Court ruled that it does not have jurisdiction over the dispute,” Harder said in a statement. “Therefore, Robert Trump will proceed with filing a new lawsuit in the New York State Supreme Court.”

Mary Trump's lawyer, Ted Boutrous, said he hoped that Harder would stop, but recognizing that's unlikely, points out that no court may violate the 1st Amendment by imposing prior restraint and blocking publication of a book that is "core political speech."

Given Harder's history, it seems unlikely that he much cares about the 1st Amendment.

Filed Under: 1st amendment, charles harder, donald trump, free speech, mary trump, prior restraint, robert trump, venue

French Constitutional Council Kills Government's Brand New Hate Speech Law

from the not-like-this-you-don't dept

France's brand new hate speech law barely made it a month before being struck down. Passed in the middle of May by the French Parliament, the new law turned regular police into internet police, allowing French law enforcement to determine what content ran afoul of new restrictions on hate speech and terrorist content. Cops would decide what should be censored and would issue the censorship order, all without ever having to run it by a judge.

The new law took what was bad about Germany's hate speech law and amplified it by eliminating judicial impartiality. Once any content was determined by law enforcement to be illegal, it was up to platforms to remove it immediately or face being fined.

As it stands now, no one will have to do anything. Politico reports the law has failed to survive a Constitutional review.

France's highest constitutional body on Thursday struck down most of a controversial bill requiring online platforms such as Google and Facebook to remove hateful content within 24 hours and terrorist propaganda within one hour.

"'[The legislation] undermines freedom of expression and communication in a way that is not necessary, adapted nor proportionate," the Constitutional Council said, ruling that the text is not compatible with the French constitution.

The law wasn't just criticized by activists, tech companies, and politicians on the other side of the aisle. It was criticized by the EU Commission itself, suggesting the law would have been dead on arrival anyway, even if it was somehow found constitutional. Not that the Union necessarily has better ideas. It, too, is trying to implement regulations forcing tech companies to remove "terrorist propaganda" within one hour of notification.

The Constitutional Council pointed out the only thing the law was guaranteed to do was encourage the swift removal of plenty of legal content.

"Given the difficulty to appreciate whether flagged content is obviously unlawful within the deadline, the penalty incurred as of the first breach and the absence of specific cause that exonerates from responsibility, [the legislation] can only but incite online platform operators to remove flagged content, whether they are obviously unlawful or not," the Constitutional Council wrote about the 24-hour removal deadline.

Collateral damage is always a given when governments decide to start calling certain types of speech "illegal." The risk increases with every iteration, especially when governments demand responses within one day… or in some cases, one hour.

Fortunately, all of that has been removed by the Council's decision. No one is currently under any obligation to remove anything targeted by this failed legislation. Back to the drawing board for legislators, who are still hoping to criminalize content created by third parties but treat tech companies like they're the actual criminals.

Filed Under: censorship, france, free speech, hate speech, intermediary liability, internet policing, online harms, takedowns

The Need For A Federal Anti-SLAPP Law Is Clear And Overwhelming

from the and-yet-no-one's-interested dept

Lawyer Daniel Horwitz has a wonderful write-up for NYU's Journal of Legislation & Public Policy on why we need a federal anti-SLAPP law. It's a quick, but thoughtful overview (and, full disclosure, I gave him a couple of small points while he was researching the article), that details not just the need for more SLAPP laws in general, but specifically a federal anti-SLAPP law. As he makes clear in the piece, there are just way too many ways to get around state anti-SLAPP laws (if a state even has one, which many don't):

Second, even in states that have enacted anti-SLAPP statutes, “[t]he scope of [] anti-SLAPP statutes varies greatly.”[ For instance, some states provide robust protection against SLAPP suits—applying to virtually all constitutionally protected speech and offering a cornucopia of benefits such as a specialized procedure for obtaining early dismissal, an automatic stay of discovery, and mandatory attorney’s fee-shifting. By contrast, other states’ anti-SLAPP statutes provide meager benefits and apply only narrowly, for instance, to speech made to government entities.

Third, even when a plaintiff files a SLAPP suit against someone who resides in a state with a strong anti-SLAPP statute, the substantive law of the defendant’s residence will not necessarily apply to the case. Instead, the law that governs the plaintiff’s claims will turn on the choice of law rules of the forum in which the suit was filed—an inquiry that can, and often does, result in the substantive law of the plaintiff’s residence or the place of injury applying instead.

It then notes the troubling trend, that we've discussed in the past, that many federal courts have now said that state anti-SLAPP laws cannot be used in federal court -- meaning that as long as they assert federal causes of action, they can get around many state anti-SLAPP laws. That wouldn't work with a federal anti-SLAPP law. That last one is important, because there are a variety of federal laws that are used for SLAPPs:

Plaintiffs also have had little difficulty filing SLAPP suits using federal causes of action—for instance, under the Lanham Act, 42 U.S.C. section 1985, the Copyright Act, and civil RICO statutes—which provide a straightforward means for plaintiffs to sue their critics, however baselessly, regarding protected speech.

From there, the article details how a federal anti-SLAPP law would solve many of these problems -- making sure it applied in federal court and to federal causes of action -- and that it would end cases more quickly and shift the fees to the frivolous, censorial plaintiffs. A key point made:

Where SLAPP suits are concerned, the process itself is the punishment, and many speakers cannot afford—or are understandably unwilling to bear—the heavy expense associated with that process at all.

As I said, the article is a quick read, even though it cites a ton of examples to make its points (28 footnotes for a 15 paragraph piece). And that's because the need for a federal anti-SLAPP law is so overwhelming and so obvious that it doesn't need more than 15 straightforward paragraphs. And yet, the movement to get one through Congress never seems to go anywhere, and it's been a major disappointment. Congress could stand up for free speech and against frivolous lawsuits, but it doesn't seem to want to get it done.

Filed Under: 1st amendment, anti-slapp, daniel horowitz, federal anti-slapp, federal claims, free speech

Schrodinger's Classified Info: Trump Argues John Bolton's Book Is Both False & Classified

from the not-how-it-works,-chief dept

As you've probably heard by now, earlier this week, the Justice Department went to court to sue former National Security Advisor John Bolton regarding his book (which is highly critical of the President), entitled The Room Where It Happened. Lots of people have lots of opinions regarding Bolton, Trump, and the book, but I'm going to focus specifically on the legal dispute here, which in some ways is reminiscent of the lawsuit filed over Ed Snowden's book, which meant that the government can take all the proceeds of that book.

The key issue in both of these lawsuits is that when you work in the US intelligence community, you are required to sign a lifetime contract that forbids publishing any manuscript or giving any speech related to your intelligence work, without the content first going through "pre-publication review." For years (going well beyond this administration) there have been claims that pre-publication review is used not just to protect classified information (its official purpose), but also to hide unclassified but potentially embarrassing information from public view. Indeed, there is a separate lawsuit, filed by Timothy Edgar and some other former intelligence officials challenging the pre-publication review process as a form of prior restraint and of creating chilling effects against speech, and thus against the 1st Amendment. In April, the judge dismissed that case.

The court rejected the prior restraint argument by noting that the plaintiffs signed a contract, and you can absolutely waive your 1st Amendment rights by contract if you so choose. The court is a bit more open to the chilling effects claim, but eventually rules against them, citing other cases that more or less said these kinds of government contracts are fine and not in violation of the 1st Amendment. It also suggests that if there's a remedy to be sought here, the proper venue is through legislative change, rather than through the judicial system. In summary, the court says:

Plaintiffs have thus fallen short of plausibly demonstrating that the challenged policies raise constitutional concerns under either of the two vagueness frameworks. The Court notes that they have also failed to link the redactions and excisions from their own works that they allege were arbitrary and discriminatorily motivated to a challenge to the PPR regimes as a whole.... Nor have they responded to Defendants’ observation that no Plaintiff has pursued judicial review of a PPR decision, as they are entitled to do.... While the Court appreciates the delay in publication that judicial review could entail, Plaintiffs have not demonstrated that such a delay on its own renders the PPR regimes constitutionally infirm, nor that review in a specific case would not be a more effective means of reviewing the alleged vagueness of a given PPR policy than a facial challenge. In any event, because none of the avenues that Plaintiffs have pursued for their vagueness claim are viable, the claim will be dismissed.

The plaintiffs in that case have since appealed.

With Bolton, there have been widespread reports that the administration deliberately slow rolled the pre-publication review process in order to try to keep the book away from the public prior to the November election. There have been reports of ongoing back and forth between the publishers and the administration, with some clear frustration expressed by the publishers/Bolton that pre-publication review is being used to stifle the book for the time being, rather than to actually scrub it for any classified material.

Given all that, it was announced that the book was going to come out anyway, leading the DOJ to sue. The lawsuit is just against Bolton, and not against the publisher, Simon & Schuster. The is, perhaps, a recognition that Simon & Schuster never signed a contract with the government, and preventing the publisher from releasing the book would have a much stronger prior restraint claim. Instead, the lawsuit just targets Bolton, and while (as with the Snowden book) it seeks to take the proceeds of the book, it also wants the court to order Bolton to tell Simon & Schuster to delay the book release, because of his own breach of contract.

That lead many people to claim that the government was not trying to stop the book from being published... However, that view did not last long. The day after the original complaint was filed, the government filed an application for a temporary restraining order and preliminary injunction. A hearing on this matter is happening today (about the time this post is being published).

From what a variety of legal experts have said it seems likely that (1) the book will still get published, but also that (2) the proceeds of the book will not go to Bolton, but will go into the US Treasury. Maybe. That said, there are some oddities here, and reading through the exhibits includes with the TRO application paints quite a story, suggesting that the administration is deliberately lying about whether or not the book actually contains any remaining classified material.

It does appear that Bolton and the government went through a fairly extensive pre-publication review over the past few months with a reviewer, Ellen Knight. Bolton and Knight met multiple times over the course of the past few months, with Knight detailing everywhere she found classified information, and Bolton responding and revising the work. Bolton ended up cutting out large chunks of the book in response to Knight's concerns about classified information. On April 27th, after yet another round of revisions, Knight told Bolton that she had no more concerns about classified info being in the book. At that point Bolton was told to expect to get the clearance. But that didn't come. Instead, the government at first seemed to ghost him. According to Bolton's lawyers:

When Ambassador Bolton asked when he could expect to receive the pro-forma closing letter confirming that the prepublication review process had been concluded, Ms. Knight cryptically replied that her "interaction" with unnamed others in the White House about the book had "been very delicate," and that there were "some internal process considerations to work through." She nonetheless thought the letter might be ready that afternoon but would "know more by the end of the day." They even discussed whether the letter should be transmitted by electronic transmission or by him physically picking up the hard copy. It has now been more than six weeks since the final revisions to the book, and Ambassador Bolton has not received the letter to which Mrs. Knight thought he was entitled. His inquiries of Ms. Knight as to when he would receive the letter documenting her agreement that the book contains no classified information have been answered with stiff and formal replies that she had nothing new to report. He had not heard from her, or anyone else at the NSC, since May 7....

What apparently happened after May 7th was that the White House magically found someone new, Michael Ellis (a political appointee who has not historically done pre-publication review), who claimed (magically) that the book was still full of classified info. Full paragraphs of it. He claims. Full paragraphs that (according to Ellis) "if made public, reasonably could be expected to cause damage, serious damage, or exceptionally grave damage to the national security of the United States." This despite Knight saying the exact opposite.

Of course, as all of this is happening, basically every major publication ran excerpts or discussions of the book. There was the article in the Washington Post talking about how Trump asked China's President to help him win the election (and supported Xi's use of concentration camps) based on reading a copy of the book. Tthe Wall Street Journal ran an excerpt talking about those same interactions with China, and the NY Times ran a story claiming that the impeachment inquiry should have looked at more than just Ukraine. Though, the NY Times also published a piece that was highly critical of the book, noting that it "swings between tedious and slightly unhinged" (which some might argue is an apt description of Bolton himself).

The President himself has gotten into the game claiming that the book "is a compilation of lies and made up stories" and that it is "pure fiction." Of course, that argument undermines the crux of the lawsuit and the push for the restraining order. Indeed, the filing for the TRO says there will be "irreparable harm" if the book is published -- which sort of conflicts with the "full of lies" claim:

The book Defendant intends to publish on June 23 contains classified information, including information classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels. This means it contains instances of information that, if disclosed, reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States.... And Mr. Ellis specifically concluded, moreover, that “certain passages in the draft manuscript . . ., if disclosed, will damage the national security of the United States.”

Indeed, the conflict between the claims of falsity and classification, oddly, enable some level of confirmation to some of the events Bolton describes. Specifically, in the excerpt published in the WSJ, Bolton says that he would print Trump's exact words to China's Xi regarding helping Trump win re-election in November, "but the government's prepublication review process has decided otherwise." As Bradley Moss, who specializes in national security law, the fact that the administration wants that conversation classified is itself confirmation that the claimed conversation happened.

So there's a bit of a Schrodinger's cat issue here regarding the statements -- and whether they're lies, in which case, they're not classified, or they're truth, in which case they might be -- but can they possibly be both at the same time?

Another key point, as raised by Marcy Wheeler, details a different sort of contrast: the one comparing Bolton to another Trump National Security Advisor: Michael Flynn. Indeed, Wheeler makes the compelling case that it's pretty clear that what Flynn did seems to be a much bigger crime than what Bolton is accused of doing here:

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

But, even odder still: to support the claims that the Flynn prosecution was in error, the White House has been declassifying various transcripts of Flynn's calls to Russian ambassador Sergey Kislyak, and Wheeler contrasts such declassification with the demands to keep information classified regarding Bolton (by the very same people):

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

[....]

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Of course, there is a clear consistency in all of this: if it makes the President and his supporters look good, it's okay. If it criticizes the President, it's not okay. That, as always, seems to be the fundamental driving force behind this administration.

The one interesting wildcard in this is the judge the case was assigned to, Royce Lamberth (who you may remember for the benchslap he gave a copyright troll). It seems almost every litigator I know has an opinion about Lamberth, and they agree that if there's one thing that Lamberth hates more than anything else: it's the DOJ trying to over-classify shit. I have now heard from five separate lawyers making claims along those lines, and he's even complained publicly at a conference about this issue, in which he called out intelligence scandals in which judges rubber stamped claims of classification to block FOIA requests.

In other words, the DOJ may have pulled their worst nightmare as a judge in this particular case -- especially given the odd nature of the pre-publication review here (approving it, only to have someone else step in and say "nope.") You never know what will happen, of course, but hopefully we get to see Judge Lambreth in full government skeptic mode.

Filed Under: 1st amendment, classified info, donald trump, john bolton, nsa, pre-publication review, prior restraint, the room where it happened
Companies: simon & schuster

Anti-SLAPP Law Turns Bogus Defamation Lawsuit Into A $26,500 Legal Bill For The Plaintiff

from the federal-law-sure-would-be-nice-tho dept

Tennessee's new anti-SLAPP law has resulted in another bogus defamation lawsuit being dumped by a plaintiff before it could do any more damage… to the plaintiff. The great thing about anti-SLAPP laws is they shift the financial burden to the person bringing the lawsuit. If the lawsuit is completely without merit -- like many of those filed in Tennessee before the new law -- the plaintiff pays the defendant's legal bills.

The new law appears to have slowed the flow of vexatiously bullshit lawsuits into Tennessee courts. But there are some brave, but mostly stupid, plaintiffs willing to take the new law out for a spin. Carl Vonhartman is probably more stupid than brave. He sued Kortni Butterton for defamation after she wrote a Facebook post (on a private, invite-only page) about her experience with Vonhartman after she rejected him on a dating app.

“His Instagram is full of him being a d*****bag a****** making fun of people and generally just being a d***,” Butterton wrote.

On January 29, Butterton said the man from the dating app showed up at her door.

“I'm locked in my bathroom,” she can be heard saying to a 911 operator. “Oh my God, he's banging on my f****** house right now. He is consistently ringing my doorbell right now.”

Before police arrived, the man left.

[...]

Butterton was so frightened by the experience, she filed for a temporary order of protection, learning that the man she had rejected on the dating app’s name was actually Carl Vonhartman.

At the hearing to extend the order, Butterton explained that when she rejected Vonhartman through the app, he did not take the rejection well, asking for an explanation as to why.

Vonhartman sued [PDF], claiming he was defamed by all of this, including Butterhorn's critique of his Instagram page. Daniel Horwitz -- well-known here for his fierce defense of Tennessee residents hit with bogus libel lawsuits -- fired back [PDF], pointing out Vonhartman's defamation claims were ridiculous for a number of reasons.

[T]he Plaintiff’s claim for slander based on Ms. Butterton’s “testi[mony] in court on February 10, 2020,” during her order of protection hearing in Davidson County General Sessions Court Case No. 20OP250 is barred by Tennessee’s absolute testimonial privilege, which affords witnesses like Ms. Butterton absolute immunity for testimony given during a judicial proceeding.

[...]

[T]he Plaintiff’s claim for libel based on Ms. Butterton’s “swor[n ] allegations in her Petition for [an] Order of Protection” in Davidson County General Sessions Case No. 20OP25024 is barred not only by the absolute testimonial privilege noted above, see id.—it is also barred by the absolute litigation privilege, which guarantees all litigants “the freedom to institute an action without fear of being sued based on statements made in the course of the proceeding[.]”

[...]

[T]he Plaintiff’s claim for slander based on “false statements” that the Plaintiff alleges Ms. Butterton made to the police when she “called 911 on January 29, 2020,” is barred—as an initial matter—by the aforementioned absolute litigation privilege that extends to communications preliminary to litigation… It is also barred, independently, by the conditional public interest and common interest privileges, which immunize from defamation liability good-faith reports to law enforcement…

And here's the knockout punch:

[G]iven his abysmal reputation for both criminality and terrorizing women, the Plaintiff is libel-proof.

Along with a DUI arrest, there's the simple assault charge brought against Vonhartman, which contains this telling bit of narrative in the police report:

[The victim] advised that she told carl [Vonhartman] she was going to call the police due to the assault. she advised that carl told her "if you call the police i am going to post naked pictures of you on the internet". jennifer advised she changed her mind at that time about calling the police.

[...]

Jennifer also advised police that she has numerous text messages from carl saved that state he will post pictures of her online and also get her fired from her job.

Also included in the filing's exhibits are some Facebook Messenger chats in which Vonhartman threatens the Facebook page administrator with lawsuits, a "war," and getting her… fired from her job.

The judge overseeing the case never got a chance to address Horwitz's motion to dismiss. It must have been enough for Vonhartman that his lawyer read it. As Horwitz reports, the lawsuit has been settled and his client is the recipient of the largest fee award in the state's short history under a new anti-SLAPP law.

From the order [PDF]:

As evidenced by the signatures of adversary counsel below, all matters in controversy between the Parties have been settled and compromised, and subject to the Court’s approval, the Parties have agreed to the following conclusive resolution of this action:

1. The Plaintiff stipulates that his Complaint failed to state any cognizable claim for relief against the Defendant, and that for the reasons set forth in the Defendant’s Memorandum of Law in support of her petition to dismiss this action pursuant to the Tennessee Public Participation Act (Doc. #12), the Defendant’s Tenn. Code Ann. § 20-17- 104(a) Petition to Dismiss the Plaintiff’s Complaint Pursuant to the Tennessee Public Participation Act (Doc. #11) should be and is hereby GRANTED. Accordingly, the Plaintiff’s Complaint, and all causes of action asserted within it, shall be DISMISSED WITH PREJUDICE.

2. Upon entry of this Order, judgment shall be ENTERED in favor of the Defendant against the Plaintiff in the amount of twenty-six thousand and five hundred dollars ($26,500.00)—inclusive of all available claims for attorney’s fees, discretionary costs, and sanctions…

With a plaintiff opening with a lot of bluster and non-actionable claims and leaving $26k lighter, perhaps other litigation hopefuls will decide they'd rather not risk their own cash on questionable legal arguments. Every loss is a deterrent, but one with a $26,500 price tag is especially effective.

Filed Under: anti-slapp, carl vonhartman, dating, defamation, kortni butterhorn, rejection, slapp, tennessee

FCC's O'Rielly Musters A Tiny Bit Of Courage To Almost Acknowledge Trump's Executive Order Is Unenforceable Gibberish

from the standing-up-to-dear-leader dept

So we've already noted how Trump's executive order governing social media is a load of fluff and nonsense. Like most brain farts that stumble out of the head of the current president, there's been a lot of breathless hyperventilation about what the executive order means, despite the fact the order itself is largely indecipherable gibberish. You can't ignore the rule of law and the Constitution via executive order, and the order's underlying justification (that social media outlets disproportionately target Conservatives) is, and has always been, unsupportable bullshit.

Initially, at least, buried under the din of confusion was the fact that the order effectively just shovels the onus over to the FCC and FTC to enforce the unenforceable. To be very clear: while the order demands the FCC "expeditiously propose regulations" to crack down on social media websites, in absolutely no universe do they have the authority to do this.

Watching the FCC's various Conservative FCC Commissioners try to avoid upsetting dear leader and acknowledging this somewhat important fact has been... entertaining. Brendan Carr responded by taking a big guzzle of the Trump Kool Aid and doubling down on his breathless praise of dear leader:

The more reserved Ajit Pai just basically hid under his desk and refused to offer much of a comment, knowing the Trump order was nonsense, but also knowing the scandal would probably soon be supplanted by something dumber. Of the three, only Mike O'Rielly appears to have mustered barely enough courage to admit the FCC might not be able to do what Trump wants. Again, because regulators can't magically overrule the will of Congress, and precedent dictates they can't regulate websites:

"Michael O'Rielly, part of the FCC's 3-2 Republican majority, says he has doubts about whether the FCC has authority to implement Trump's order regarding Twitter and other online platforms...O'Rielly discussed the topic on C-SPAN last week, saying he won't take a position until he has researched the topic more thoroughly. "I haven't taken a position because I have to do my homework," O'Rielly said, adding that he has "deep reservations" that the FCC has authority to act as Trump directed."

Mmm yes, a supposed expert on the nation's legal and regulatory policy framework needs to apparently "do some more homework" to figure out whether the FCC has authority the vast, vast majority of experts state it clearly doesn't have. That's as close as you're going to get to anything resembling political courage out of this telecom industry ass kissing FCC. And even then, O'Rielly's commentary is filled with caveats implying that this is somehow an issue that still needs debating:

"O'Rielly said he plans to speak with people who wrote the Section 230 statute that was passed in 1996 and other "knowledgeable people about the matter," to determine whether Congress "intentionally gave us authority, or accidentally gave us authority," or gave the FCC "no authority...O'Rielly was a congressional staffer at the time Section 230 was passed. "My memory is pretty good on those things," O'Rielly said. "I have deep reservations that [Congress] provided [the FCC] any intentional authority for this matter but I want to listen to people. I want to see if other memories are different from mine. There weren't many people in the room."

It's not a matter of "memory." Congress did not. There's nothing murky here. Go ask FCC policy experts like Harold Feld, who has spent the better part of a lifetime studying the wonkiest aspects of FCC authority:

"The FCC is an independent agency. Congress deliberately insulated it from direct control of the President in order to prevent the President from using it against political opponents and to ensure representation by both political parties. As events keep showing, this turned out to be a pretty smart move."

As Feld notes, the President can't just demand the FCC do something. While the President can order the NTIA to file a Petition with the FCC to do something outside of its jurisdiction, that doesn't magically mean the FCC can actually do so. As such, while this whole thing might get a docket number and see ample pearl clutching "censorship" headlines from the MAGA set right around this summer and fall election season (arguably the entire and only goal), it's extremely unlikely it ever results in anything substantive since the EO is little more than a brain fart in prose form.

Pai, Carr, and O'Rielly all know this. O'Rielly is at least able to vaguely hint in the general direction of where reality is located way across the post-truth MAGA valley. Carr took the complete opposite tack because it's fairly clear he has bigger, broader ambitions:

Historians, with any luck, will correctly look back at this era as one of near immeasurable sycophancy, where facts were easily and routinely discarded for the benefit of an unqualified, authoritarian leader. But in the shorter term, this whole thing will consume a ton of calories, taxpayer money, and brain power. But it's a bunch of sound and fury, signifying nothing. Something the folks at the Pai FCC would clearly and unequivocally acknowledge had they the faintest shred of backbone.

Filed Under: donald trump, executive order, fcc, free speech, independent agency, mike o'rielly, section 230, social media