Congressional Reps Demand Federal Law Enforcement Agencies Stop Surveilling Protesters

from the yep-I'm-sure-they-were-just-waiting-to-be-told-'stop'-before-stoppin dept

Protests linked to the George Floyd killing are still occurring on a daily basis around the nation. With increased citizen activity comes increased police activity. Apparently, police departments can't handle these protests on their own. In some states, the National Guard has been called in. In others, surveillance tech on loan from federal agencies is being deployed to keep an eyes on protesters.

The DEA apparently doesn't have enough to do during this current civil unrest, so it has asked permission to spy on protests in hopes of catching someone committing federal crimes. No one asked the DEA to do this. It inserted itself into this situation and apparently couldn't even find enough DEA agents to volunteer for its First Amendment incursions. A mixture of 25 volunteers and voluntolds are headed to major cities to keep an eye on stuff completely unrelated to the job of drug law enforcement.

Federal agencies have apparently decided the current situation demands an increase in domestic surveillance. A group of 35 federal legislators want to know why. A letter [PDF] sent to the FBI, DEA, National Guard, and CBP lets these agencies know their overseers aren't exactly impressed with this opportunistic spying. The mini-coalition says the following behavior is unacceptable and possibly inexplicable:

While the job of law enforcement is to protect Americans, limited actions may be necessary if a demonstration turns violent. However, this authority does not grant the agencies you lead to surveil American citizens or collect vast amounts of personal information. Recent press reports indicate that:

• the FBI and National Guard flew RC-26B aircraft equipped with infrared and electro-optical cameras over Washington, D.C. and Las Vegas;

• the FBI may have flown Cessna 560 aircraft equipped with ‘dirtboxes,’ equipment that can collect cell phone location data, over Washington, D.C.;

• the CBP flew Predator drones that collected and disseminated live video feeds over Minneapolis, San Antonio, and Detroit; and

• the DEA was granted broad authority to “conduct covert surveillance” over protesters responding to the death of George Floyd.

That's just the stuff that's been documented by journalists. There's likely other stuff happening too -- stuff that no one's aware of outside of the agencies performing the surveillance. This includes other tech tools agencies use frequently, like Stingray devices, facial recognition software, and license plate readers. All of this being deployed in the general direction of activities protected by the First Amendment isn't the sort of behavior we want to see from agencies sworn to uphold the Constitution.

The letter notes citizens have responded to the government's surveillance by taking steps to protect their communications and data, as is evidenced by the surge in encrypted messaging app downloads during recent days. The Congressional reps say this is the direct result of the government's actions. It's not acceptable for citizens to feel forced to protect themselves from their supposed protectors.

Americans should not have to take proactive measures to protect themselves from government surveillance before engaging in peaceful demonstration. The fact that the agencies you lead have created an environment in which such headlines are common is, in and of itself, an indication of the chilling effect of government surveillance on law-abiding Americans. For these reasons, we demand you cease surveilling peaceful protests immediately and permanently.

We'll see if these agencies are willing to listen to their overseers, since they've proven unwilling to listen to their employers. The full extent of domestic surveillance during the George Floyd protests likely won't be revealed until months or years from now. Some will leak out during prosecution of suspected criminals rounded up during protests and riots. Other stuff will be FOIA'ed. A very small amount of information will be delivered by these agencies to members of Congress in public statements and letters. The rest will stay hidden. Whatever isn't obscured by parallel construction will be hidden under black redaction bars citing handy FOIA exemptions. But it's undeniable: law enforcement agencies are dying to engage in broad, warrantless surveillance. Flareups around the country are giving them the excuse they need to indulge their baser urges.

Filed Under: 1st amendment, cbp, dea, fbi, national guard, protesters, surveillance

Trump Campaign Is So Pathetic It Claims CNN Poll Is Defamatory; Demands Retraction

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

We've seen all sorts of crazy defamation claims over the past few years, but this may be the dumbest. You may have heard that our thin-skinned President is very unhappy about various polls showing that the American public isn't much interested in buying what he's selling. He even hired a pollster, McLaughlin & Associates, with a notoriously terrible record to come up with new polls after seeing more polls that don't reflect the reality he'd like. Which, of course, is his prerogative. It's easier to hide from the truth if you can make up lies to surround yourself with.

The only problem: the other stuff is still out there. And so the Trump Campaign took things up a notch, sending CNN a letter demanding it retract the poll and apologize. CNN reported on this, but didn't share the full letter. In what can only be described as a self-own, a legal adviser to the Trump Campaign, Jenna Ellis, decided to publish the letter she had sent to CNN. She claimed she was posting the full thing on Twitter because CNN's reporting was an "attempt to skew the narrative."

Except... the letter itself makes the story look even worse. The CNN article did only quote parts of the letter, the silly claims "it's a stunt and a phony poll to cause voter suppression, stifle momentum and enthusiasm for the President" but left out the insane legal threat that the poll was defamatory. Yes, the poll. Defamatory. A poll? Defamatory. That is not how any of this works. But, from the letter:

The poll is intentionally false, defamatory and misleading, and designed to harm the Donald J. Trump for President, Inc. campaign.

You are officially on notice of this dispute and therefore are required to undertake steps to affirmatively preserve, and not delete, any and all physical and electronic documents, materials, information, and data that pertain in any way to the June 8, 2020 poll, including without limitation all emails, text messages, instant messages (IMs/DMs), letters and memoranda, articles, and social media postings (including all drafts as well as final version of all written communications), as well as other types of written, physical and digital materials, including handwritten notes, typerwritten notes, summaries, charts, receipts, audio recordings, video recordings, photographs, telephone call logs, calendar entries of al [sic] types, financial data and information, etc. that pertain in any way or might otherwise be relevant or related to the foregoing matters. All sources of documents, materials, information, and data should be preserved, including without limitation, physical files, electronic files, computer servers, email servers, backup tapes, cloud storage, personal computers, hard drives, smart phones, tablets, and other types of storage devices including external drives, thumb drives, zip drives, disks and DVDs. Failure to affirmatively preserve such documents and materials could result in severe sanctions imposted [sic] by a court which could include, among other remedies, monetary sanctions, evidentiary sanctions, issue sanctions and/or the striking of answer and entry of default judgment.

Yup, CNN. Make sure you retain those zip drives. What is this, 1996?

Anyway, a poll is not defamatory. By definition. And, of course, sending such a bogus defamation threat letter, full of that lawyerly garbage, all it's really done is call that much more attention to just how badly Trump appears to doing right now, according to public perception.

Meanwhile, once the campaign published its letter, CNN decided to publish its response, written by the amazingly named General Counsel of CNN, David Vigilante:

To my knowledge, this is the first time in its 40 year history that CNN has been threatened with legal action because an American politician or campaign did not like CNN's polling results.

To the extent we have received legal threats from political leaders in the past, they have typically come from countries like Venezuela or other regimes where there is little or no respect for a free and independent media.

CNN is well aware of the reputation of John McLaughlin and McLaughlin & Associates. In 2014 his firm famously reports that Eric Cantor was leading his primary challenger Dave Brat by 34 points only to lose by 11 points - a 45 point swing. The firm currently has a C/D rating from FiveThirtyEight.

In any event, McLaughlin was able to evaluate and criticize CNN's most recent poll because CNN is transparent and publishes its methodology along with its polling results. Because of this, McLaughlin was free to publish his own critique of CNN's analysis and share his criticisms across the U.S. media landscape. That's how free speech works. It's the American way.

Your letter is factually and legally baseless. It is yet another bad faith attempt by the campaign to threaten litigation to muzzle speech it does not want voters to read or hear. Your allegations and demands are rejected in their entirety.

Yes, but how do you really feel?

Somehow, I get the feeling that a federal anti-SLAPP law is unlikely under the current President.

Filed Under: 1st amendment, defamation, donald trump, free speech, jenna ellis, joe biden, john mclaughlin, polls, trump campaign
Companies: cnn

Sheriff Goes All In On Violating The First Amendment After Assaulting A Protester For Carrying A 'F*CK TRUMP' Sign

from the hope-the-county-tells-him-he-has-to-pay-for-his-own-lawyer dept

A whole lot of attention -- and thousands of cellphone cameras -- are focused on law enforcement officers. Nationwide protests sparked by the killing of George Floyd by Minneapolis PD officer Derek Chauvin have aimed a lot of unblinking eyes at officers around the country.

Unfortunately for the protesters -- and Americans in general -- a great number of officers have chosen to behave badly. Journalists have been targeted, teargassed, and arrested. Peaceful protests are being greeted with violence from police officers, who seem unable to comprehend just how quickly and thoroughly they're making the protesters' points for them.

Via Adam Steinbaugh comes yet another protest-related act of violence and stupidity by a law enforcement officer. This one, however, sits at the top of his county's food chain. And he's apparently unaware of the First Amendment, Supreme Court precedent, or how to properly respond to nothing more than a (self-censored no less!) profanity.

Actual video exists of this confrontation, which has led to stupider and stupider things in the days following this sheriff's initial reaction:

Having stolen a sign from a demonstrator -- one that said "F*CK TRUMP" -- Sheriff Ashley Paulk then decided to grab the woman with the nearly-foulmouthed sign by the neck and shove her around for a bit.

He then doubled-down on his initial error by keeping the sign and declaring he needed it for an "investigation."

No one but Sheriff Paulk seems to know what he'll be investigating, especially since there's nearly 50-year-old Supreme Court precedent on the books saying profanity is protected by the First Amendment, especially in "political" contexts, which these demonstrations clearly are.

Here's the sheriff tripling-down one day later:

Lowndes County Sheriff Ashley Paulk says his office will arrest protesters holding signs with profanity, after getting in a brief scuffle Wednesday when he took a sign away from a group in downtown Valdosta.

There are even more dubious assertions further down in the article:

The sheriff says he supports the group's right to protest peacefully, but he does not want them showing signs with profanity.

Oh ok. I guess bad words are now literal violence. That's a dumb take. But this is even dumber. This assertion makes it clear he feels the journalists he's speaking to are dumber than he is.

He went to get the sign after getting several calls complaining about the language, the sheriff says.

Even if true -- which seems unlikely -- the government doesn't get to engage in content-based speech restrictions just because some locals are unhappy.

In support, Sheriff Paulk cites a law that doesn't say what he thinks it does.

Georgia law… makes it a misdemeanor to use obscene, vulgar or profane language in the presence of a person under age 14, which threatens an immediate breach of the peace.

That last clause carries all of the weight and Paulk completely ignores it. The use of profane language in the presence of a person under the age of 14 has to "threaten an immediate breach of peace" to be illegal. Simply swearing (or in this case, almost swearing) in the presumed presence of certain minors isn't a crime by itself.

So, guided by his own wrong assumptions, the sheriff is now loading up on civil causes of action.

A young woman was arrested for holding a sign displaying obscene language that alludes to a lewd act between Sheriff Ashley Paulk and President Donald Trump.

Sheriff Paulk doesn't deserve to keep his job. Residents of Lowndes County should take this opportunity to vote him out… oh.

He is running for re-election this year, and is unopposed.

Pretty sure an empty office would be doing a better job handling these very mild (and very mildly profane) protests. Running unopposed guarantees Sheriff Paulk will stay in office long enough to make it easy to serve him with lawsuits, but it's not going to make the state of policing any better in Lowndes County.

Filed Under: 1st amendment, ashley paulk, free speech, georgia, lowndes, profanity, protests

Trump Campaign Non-Disclosure Agreements Again Being Challenged In Court

from the boilerplating-people's-mouths-shut dept

President Trump is fond of non-disclosure agreements. He's been this way for far longer than he's been president, but his insistence on foisting them on anyone who has worked for him has become problematic now that he's the ultimate public figure.

Some of these NDAs have been broken inadvertently during the course of dubious lawsuits filed by former Trump associates against journalists. In other cases, the DOJ itself has gotten involved, trying to invoke possibly non-existent agreements with the government to block publications by former Trump staffers.

Now, a former Trump campaign staffer is in court challenging the legality of the NDA she signed when managing phone banks for Trump before moving up to be his director of Hispanic engagement. She argues the NDAs serve no purpose but to block speech critical of her former employer. (Non-paywalled version here.)

In the complaint, Ms. Denson’s attorneys argue that the campaign’s nondisclosure agreement, which all staffers were required to sign, “is wildly broad, prohibiting a vast array of speech about a candidate for the highest office and the current President of the United States—forever. And the campaign has repeatedly invoked its prohibitions in an effort to chill truthful political speech it dislikes.”

As is the case with any agreement, people can voluntarily give up some of their rights (in this case, free speech) in exchange for employment. But there's more to it than simply preventing the release of any information Trump might want to remain secret. It also says everyone who signed one must continue to play nice in perpetuity.

[I]t contains a nondisparagement clause that prevents staffers from ever demeaning or disparaging the president, his family or his companies.

Denson is arguing this violates the state's contract law, as well as her free speech rights under both the New York constitution and under the First Amendment. And it will probably be greeted with a strong defense from the Trump campaign, given the fact that Denson has already sued the Trump campaign for allegedly subjecting her to sexual discrimination and slander. That lawsuit, filed in 2017, has led directly to this legal challenge of the NDA itself, which Trump lawyers say Denson violated when she filed her discrimination lawsuit.

NDAs may be common but they're never as necessary as those forcing them on employees think they are. Campaign staffers may have access to a lot of information candidates may not want to see released, but a lifelong gag isn't the only way to handle this. The Wall Street Journal reports the Biden campaign does not require staffers to sign NDAs, indicating it's possible to run a presidential campaign without swearing everyone to secrecy.

If this challenge is successful, it will be a nightmare for Trump and his campaign team. Very rarely has any former staffer or employee stepped forward with anything positive to say about the President. The criticism tends to flow faster now, given the turnover rate in the White House. Not every NDA is foisted on employees by bad employers, but a lot of them are. And when the employer ends up being the leader of the free world, it makes little sense for the man up top to continue to insist former employees can't have full access to their rights.

Filed Under: donald trump, free speech, nda, non-disclosure, trump campaign

If The NY Times Doesn't Publish My OpEd On Why James Bennet Is An Incompetent Dweeb, It Must Hate Free Speech

from the this-is-not-how-any-of-this-works dept

Buckle up, because this one is going to be quite the long road trip, and I hope you won't rush to the comments without joining me on the entire journey first. But if you want a sense of where we're heading, here's the route map: the New York Times published an insane warmongering Senator's push to turn our own soldiers on protesting Americans, people (including many Times journalists) complained, the Times tried to defend the decision, and then admitted "mistakes were made," and a bunch of very silly people who pretend to be "serious thinkers" whined nonsensically about free speech and the "unwillingness to listen to opposing ideas," all while refusing to listen to opposing ideas. And all of it's nonsense: because editorial discretion is not a free speech issue and calling out a terrible paean to fascism is not an unwillingness to listen to "opposing ideas."

Off we go.

If you've been paying attention to the world of media in the past few days, you've probably already seen some of the loud and raucous debate. On Wednesday, the Times made the incredibly bad decision to publish the truly awful op-ed from Arkansas Senator Tom Cotton, suggesting that President Trump should send the US military to invade US cities, because, while the vast majority of protests around the nation have been peaceful (other than all those disrupted by police violence), there have been a few cases of some people breaking windows, setting fires, and stealing goods. There seems to be little evidence that this is as widespread a problem as the President and his supporters make it out to be, but in an effort to control the narrative, they're claiming that there's widespread violence and attacks overshadowing protests.

Cotton's op-ed is bad. Just to take one bit of it, this paragraph is utter hogwash:

One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what’s necessary to uphold the rule of law.

This is a "the beatings will continue until morale improves" approach. It doesn't work. It's never worked. It will only make things much, much worse, and put many more lives in danger. It is based on a combination of false statements (regarding the extent of "riots"), a misunderstanding of why people are expressing their anger in this way, and huge confusion about how people are likely to react to even scarier militarized soldiers and weaponry arriving on city streets. The people are protesting the very concept that they are an enemy, and sending in our own military is not only scary and authoritarian, it simply reinforces the message that they are protesting against.

An overwhelming show of force is the problem. Doubling down on that doubles the problem.

Leaving that aside for the moment, what's been much more fascinating is the response to the publication. Many people pointed out that it was simply ridiculous for the New York Times to run this op-ed. After many people on Twitter raised questions about why the Times would publish such dreck on its opinion pages, a bunch of Times journalists themselves decided to speak up and call out their bosses for allowing the op-ed to run. Many pointed out that the op-ed itself put Times staffers in danger.

It's worth noting that the Times is one of the newspapers that has a set of very stupid social media policies that forbid journalists and staff from making any comment "that undercuts The Times' journalistic reputation." That means speaking out in this manner may actually threaten their jobs as well. As the complaints grew louder, James Bennet, who runs the frequently awful opinion section of the paper, first defended the decision to publish the op-ed on Twitter with a painfully weak and predictable argument along the lines of "we want to show both sides of the debate." He then posted a somewhat better and more thoughtful explanation in the Times itself (seriously, I'd recommend reading that over his terrible Twitter thread). He's still wrong, but his argument is much better articulated.

Of course, later in the day after an apparently vocal discussion inside the newspaper (more on that in a moment), the Times admitted that the Cotton op-ed did not meet its editorial standards, and should have received a more thorough review. Incredibly, that piece says James Bennet claims he never read the op-ed before it was published:

James Bennet, the editor in charge of the opinion section, said in a meeting with staff members late in the day that he had not read the essay before it was published. Shortly afterward, The Times issued a statement saying the essay fell short of the newspaper’s standards.

“We’ve examined the piece and the process leading up to its publication,” Eileen Murphy, a Times spokeswoman, said in a statement. “This review made clear that a rushed editorial process led to the publication of an Op-Ed that did not meet our standards. As a result, we’re planning to examine both short-term and long-term changes, to include expanding our fact-checking operation and reducing the number of Op-Eds we publish.”

This is insane on so many levels. I find it unbelievable (in the most literal sense) that no one within the editorial process thought to flag a piece as obviously as incendiary as this one for the top opinion editor to review. It suggests either that Bennet is really, really bad at his job, or the entire NY Times opinion section is a complete joke. Or both. There's enough evidence to suggest both of those may be the case. Meanwhile, a new report notes that the Cotton op-ed went through three rounds of revisions, which is quite odd for an op-ed piece, and makes the NY Times look so much worse. It means they really spent time thinking about it and still felt it was worth running, and yet Bennet never even bothered to read it? How is that possible.

In the midst of all this, there were a bunch of tweets and accusations thrown around about the internal debate at the NY Times, with one of its many terrible opinion writers, Bari Weiss, writing a huge thread pushing a narrative that there was a "civil war" between the young "woke" journalists and the older traditional "liberal" journalists. The only problem with this is that almost everyone else who was actually involved in the discussion pointed out that Weiss was completely full of shit.

Click through, because that thread goes on and on and on with examples of Times journalists saying that Weiss' statements appear to be more gaslighting than reality.

But then, of course, you had other "serious people" complaining about the complainers. You had long-time mainstream media "political analyst" Jeff Greenfield pushing a truly ridiculous strawman that complaining about one particular op-ed means you don't think the Times should have an op-ed page at all.

If that's the case, I'll refer to the title of this post. The Times must publish my op-ed on why James Bennet is an incompetent dweeb, or it proves that it's afraid to take on the difficult-to-hear opinions of the day. Prove me wrong, Jeff Greenfield. Prove me wrong.

And there was ever sanctimonious Andrew Sullivan, who called Times reporters speaking up about their own fears for their own safety "an attempted coup."

If you're playing along at home, apparently the rules are that if you're a white, war-mongering Senator with opinions about turning the US military on our own citizens, everyone must listen because that's free speech. But if you're a black reporter who is afraid for the risks you now face, and speaks up about it, that's an "attempted coup."

I sense a double standard.

There was also a truly disingenuous focus on the idea that this represented "safetyism" as a way to silence opposition. This was brought up by both Weiss and Randy Barnett, claiming that by playing the "victim" you are somehow "silencing opposition."

Of course, I have trouble seeing how they're doing anything differently than the people they're complaining about. Those complaining about the op-ed are stating their opinions and suggesting that it was silly of the NY Times to publish a garbage op-ed, which might lead to more death and destruction. Barnett and Weiss are now complaining that it was silly of those complaining to publish those complaints. Would it be okay if I accused both of them of resorting to "safetyism" and trying to hide from the opposing viewpoint that "promoting outright fascism is bad"? Or does this only work in one direction?

Unfortunately, this framing is picking up in certain circles, including among people I respect. The folks at Reason, who I tend to agree with much more frequently than not, ran a silly "mock the woke snowflakes" piece, arguing that this is the end result of political correctness run amok.

The woke left's march through the institutions, from experimental liberal arts campuses to the most hallowed journalistic outlets, has been breathtaking in its speed and scope. It's a generational war, and the GenXers for whom this stuff doesn't come natural are learning that they have to become fluent in the new language or end up as pariahs in their own newsrooms. The country's top editors—Jeffrey Goldberg at The Atlantic, David Remnick at The New Yorker—discover during moments of staff revolt that their old-timey notions about broad public squares and multi-viewpoint conversations are no longer tolerable.

And, of course, Senator Cotton is loving every moment of this nonsense, and gleefully playing up the controversy and using it to attack the Times (which, who knows, may have been his goal all along, or perhaps was just a bonus):

But there's a huge problem with this nonsense. It has nothing to do with "woke mobs," "political correctness," "safetyism," or an "unwillingness to listen to opposing viewpoints." Speaking up about your concerns is not "an attempted coup" and opposing the decision to publish a stupidly bad op-ed is not an unwillingness to have op-eds.

This is all free speech, and no one has even remotely attempted to stop anyone's right to speak their mind. They've just been highlighting the difference between discretion and censorship that we've been talking about here lately. The New York Times is the New York Times because it has a reputation (for some, good, and for others, bad). But part of that reputation is its editorial discretion. Declining to publish a bad op-ed is not about ignoring "the opposition" or wanting to play the victim and squelch "non-woke" speech, nor is criticizing the Times for its decision to publish it.

It's calling out bad editorial discretion. Every choice the Times Opinion section makes involves editorial discretion. Not agreeing to publish my op-ed on James Bennet being an incompetent dweeb is editorial discretion. Continuing to publish whatever utter bedbug nonsense its columnists come up with is editorial discretion. People can and should criticize bad editorial discretion, because that encourages better editorial discretion.

But it is simply ridiculous to say that complaining about a single editorial decision suggests an unwillingness to engage, or an unwillingness to hear ideas someone disagrees with. As far as I can tell, no one in this debate has suggested that Tom Cotton not be allowed to speak his militaristic, ahistorical nonsense. He can say what he wants. The question is whether or not it's appropriate for the New York Times to publish it at all.

This whole silliness hits home deeply for me for a variety of reasons, not the least of which is that just last week we launched a new project, the Techdirt Greenhouse, in which we will be hosting many opinions I disagree with strongly (oh, and for what it's worth, unlike James Bennet, I do read every piece before it goes out). And, over the past two years, as we worked on this effort, I've had to explain to many people that part of the idea was to publish smart, thoughtful, nuanced commentary that will involve fundamental differences of opinion and disagreement -- but without the crazy takes.

And I'll admit that there are times in this process that I questioned myself closely: when I say "no crazy takes," does that mean that I am silencing a certain point of view? Or is it simply a recognition that there are intellectually honest ways to disagree, and intellectually dishonest ways, and I have no desire to be a part of the latter? That, too, is part of editorial discretion.

It is entirely possible to believe in free speech, to believe in hearing all kinds of viewpoints, including those we disagree with and that make us feel uncomfortable, without saying "yes, this publication should post fundamentally terrible, intellectually dishonest support for a truly crazy idea." That's not running from things that make people uncomfortable. It's having the understanding of what's being discussed in good faith, and what's dangerous populist nonsense, designed to stir up emotions through dishonest means, rather than a debate of ideas.

So, of course, the Times should not publish my op-ed about how James Bennet is an incompetent dweeb (even though it's quite good). That's well within its editorial discretion and (mostly) an editorial position I'd agree with. That does not mean that anyone is uncomfortable with my ideas, or trying to silence me. It's just that they understand that my (mythical, theoretical) piece is an attempt at absurdist, emotional nonsense -- just like Senator Cotton's piece -- and deserves no space in a serious publication.

Filed Under: editorial discretion, free speech, james bennet, op-eds, opinions, political correctness, safetyism, tom cotton, warmongering
Companies: ny times

CDT First Out The Gate In Suing To Block Donald Trump's Silly Executive Order On Section 230

from the go-go-1st-amendment-go dept

The Center for Democracy and Technology appears to be the first out of the gate in suing Donald Trump to block his silly executive order on Section 230. In the aftermath of the EO being issued I know some people wondered if it was actually worth suing over, since it actually did so little in practice. But, as I discussed in this week's podcast, it can still be used to create havoc.

The basic argument in the lawsuit is that the executive order is clearly retaliatory against Twitter for its 1st Amendment protected speech in fact-checking the President, and thus violates the 1st Amendment:

A private company engaged in constitutionally protected speech on its own online platform by including a label on President Trump’s tweets on May 26, 2020, and linking to information regarding the subject matter of President Trump’s tweet, thereby expressing its viewpoint and adding to the discourse on its platform regarding the subject matter of the President’s tweets.

Two days later and after a series of public attacks directly focused on the company’s exercise of free speech, President Trump retaliated on May 28, 2020, by issuing the “Executive Order on Preventing Online Censorship,” expressly mentioning the company by name six times. The company’s constitutionally protected speech was the proximate or “but for” cause of President Trump issuance of the Executive Order. President Trump also issued the Executive Order to pressure the company into removing its constitutionally protected speech from its online platform and to coerce other Internet intermediaries into refraining from similar constitutionally protected speech on their own platforms, and into prohibiting such speech by their users, in the future.

President Trump’s retaliatory acts would deter a person of ordinary firmness from engaging in First Amendment speech and activity.

The Executive Order was intended to have, and is having or is likely to have, the effect of chilling the constitutionally protected speech of online content platforms, including Twitter, Facebook, Instagram, and YouTube that were explicitly named in the Executive Order.... The Executive Order seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals—by demonstrating the willingness to use government authority to retaliate against those who criticize the government.

The complaint goes into great detail as to why this is obviously retaliatory, laying out the timeline:

Twitter did not remove the President’s tweets about mail-in voting. Those tweets remain available to the public. Instead, Twitter provided more information regarding the subject matter of the President’s tweet.

In response, on May 26, 2020, the President tweeted “@Twitter is now interfering in the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead to massive corruption and fraud, is incorrect, based on fact-checking by Fake News CNN and the Amazon Washington Post . . . .” “Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!”

[....]

On May 27, 2020, the President tweeted at 7:11 a.m., “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that . . . happen again.” “Just like we can’t let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win. Likewise, Social Media. Clean up your act, NOW!!!!”

The President continued his targeted attacks by tweeting at 10:22 a.m., “Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow!” At 9:36 p.m., he followed up by tweeting, “Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election. If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!”

On May 27, 2020, White House adviser Kellyanne Conway, appearing on “Fox & Friends,” spelled out the Twitter handle for Twitter’s head of Site Integrity (a “handle” is the means of identifying a specific individual via Twitter) and said, “somebody in San Francisco will wake him up and tell him he’s about to get more followers. This guy is constantly attacking Trump voters, Trump, Mitch McConnell, you name it.” The handle for Twitter’s head of Site Integrity is “@[y*****].”

At 10:47 p.m. on May 27, 2020, Twitter’s CEO Jack Dorsey stated on Twitter that he personally took responsibility for the decision to add a label to Trump’s tweets, adding, “Please leave our employees out of this.”

On May 28, 2020, the President retweeted Rep. Elise Stefanik’s tweet: “Thanks for the clarification @jack[.] This makes YOU accountable for allowing the Chinese Communist Party to abuse this site with mis-information & propaganda spread across the globe - all while the CCP bans and suppresses their own people from using Twitter!”

Later that morning, at 8:37 a.m., President Trump tweeted, “This will be a Big Day for Social Media and FAIRNESS!” At 12:44 p.m. he continued, “So ridiculous to see Twitter trying to make the case that Mail-In Ballots are not subject to FRAUD. How stupid, there are examples, & cases, all over the place. Our election process will become badly tainted & a laughingstock all over the World. Tell that to your hater “@[y*****].”

There's more in the complaint on Trump's retaliatory efforts, including examples of him retaliating against companies in the past as well.

One question I was concerned about was whether or not CDT actually would have standing to bring this lawsuit, since it's not an interactive computer service, as targeted by the complaint. CDT argues that it has standing due to its efforts to fight for free speech online, which the order will likely impact:

CDT is a nonprofit advocacy organization that works to ensure that the human rights people enjoy in the physical world, like freedom of speech, are realized online and that technology continues to serve as an empowering force for people worldwide. Integral to this work is CDT’s representation of the public interest in the creation of an open, innovative, and decentralized Internet that promotes the constitutional and democratic values of free expression, privacy, and individual liberty.

Critical to CDT’s mission is advocating in favor of First Amendment protection for speech on the Internet. To that end, among other things, CDT has participated in a number of cases addressing First Amendment rights and the Internet, including as litigants in CDT v. Pappert, 337 F. Supp. 2d 606, 646, 649-63 (E.D. Pa. 2004) (striking down as unconstitutional a statute that imposed criminal liability on Internet service providers who failed to comply with requests issued by the Pennsylvania Attorney General to block access to websites containing child pornography); challenging, as part of a broad coalition, key portions of the Communications Decency Act (CDA) in Reno v. ACLU, 521 U.S. 844 (1997) (striking down portions of the CDA prohibiting transmission of obscene or indecent communications to persons under Age 18 as a content-based blanket restrictions on speech and facially overbroad in violation of the First Amendment); and as amicus curiae in First Amendment challenges including Backpage.com, L.L.C., v. Dart, 807 F.3d 229 (7th Cir. 2016) (holding campaign by sheriff’s office to pressure pressuring financial intermediaries to cease payment processing for online classified advertising website to be an unconstitutional prior restraint) (See ECF Nos. 29, 34, 35, and 37, No. 15-3047 (7th Cir.)).

CDT has been deeply engaged in law and policy advocacy regarding intermediary liability frameworks, free speech, and content moderation since the organization was founded in 1994.

The organization devotes significant resources to advocating in favor of individuals’ online free expression rights and the legal frameworks that support them, including evaluating proposals to amend the proposed laws on free speech online and challenging legislation that burdens individuals’ fundamental rights, holding public events, and communicating with policy makers in the Executive and Legislative Branches.

The Executive Order injures Plaintiff CDT by infringing on its interests, including its interests in enhancing freedom of expression, preserving the unique nature of the Internet, and limiting government surveillance, and by causing Plaintiff CDT to divert resources to safeguarding the principles underlying the First Amendment, 47 U.S.C. § 230, and the free speech rights of online content platforms and individuals that the Executive Order places under attack.

As a result of the Executive Order, CDT will be required to devote substantial resources to (a) participating in the planned FCC rulemaking proceeding; (b) monitoring federal agencies’ reports regarding and any action by the Department of Justice; (c) tracking any FTC action with respect to online speech, and participating in any proceedings that the Commission institutes; (d) engaging with federal and state policymakers with respect to the development of proposed legislation—as well as informing the public about all of these activities and the potential consequences for protection of free speech online. These activities will be time-consuming and resource-intensive, and will require CDT to reallocate resources that it planned to use for other activities furthering its mission.

I don't know if this will be enough to convince the court, but I hope it is. CDT has been on the frontlines of so many lawsuits defending free speech on the internet, with many success stories behind it. Hopefully this is another one.

Filed Under: 1st amendment, cda 230, donald trump, executive orders, free speech, retaliation, section 230

Copyright Blocks Interview Of Protesters Because Marvin Gaye's 'Let's Get It On' Was Playing In The Background

from the copyright-as-censorship dept

Another day, another example of copyright acting as censorship. The folks over at Unicorn Riot have been covering the protests around the country, but apparently they can't do that as they'd like because copyright is getting in the way. Unicorn Riot announced on Twitter that video interviews they had conducted and posted have been pulled down from both Facebook and YouTube due to copyright claims such as this one:

If you look closely at that image of the info within YouTube, it shows what are most likely ContentID matches of five different songs that were flagged, playing in the background while protesters were being interviewed. Three of the songs -- by Beyonce, Kanye West, and Kendrick Lamar -- were listed for demonetization (which would allow Unicorn Riot's videos to play, just without monetization). But two more -- by 2Pac and Marvin Gaye -- said the entire video had to come down.

Now, YouTube does let the user "trim out" that sequence, or "mute" the song, but doing so would trim or mute the interview at the same time, and that kinda defeats the purpose.

And so you have an end result where important historical documentation of huge and important protests, focused on police brutality against black Americans, is being blocked and erased from history, due to the copyright on music created by black musicians.

That cannot and should not be the point of copyright. And yet, it is what we have today.

Unicorn Riot (understandably) is complaining that Facebook and YouTube have "algorithmically interfered" with their reporting, but the reality is that it's copyright to blame here. And we should not confuse the two.

Filed Under: censorship, contentid, copyright, free speech, journalism, marvin gaye, protests, takedowns
Companies: unicorn riot, youtube

Bangladeshi Government Decides There's No Time Like The Present To Censor/Arrest More Journalists

from the seize-the-means-of-criticism dept

We can't have nice things. We can't even have mediocre things. And, in the midst of a global pandemic, we can't even have basic things. The Bangladesh government hasn't exactly discovered the power of censorship. The government and this power are already acquainted. But with a novel virus in the air, the government has discovered it can silence speech more effectively.

At least 20 journalists in Bangladesh have been charged or arrested under the controversial Digital Security Act (DSA) in the past month, raising concerns about free speech in the South Asian nation.

A number of journalists have been arrested for social media posts critical of the government or reporting on the government's handling of the coronavirus pandemic.

This isn't the only government handling the pandemic poorly. The response to the growing pandemic has ranged from bad to awful to well-we're-done-reporting-stats around the world. But governments should welcome criticism. It keeps them honest. But world governments hate honesty. It shows they're not prepared to handle nationwide outages. Unemployment rises. Markets fall. And governments… well, they censor.

At least one Bangladeshi journalist has already been "disappeared" by the government. Other journalists remain, but they're overseen by a vindictive government that won't take "this won't do" for an answer. The government wants to hold those least responsible for the government's failure responsible for the government's failure. Cue the arrests and the attendant silencing.

Nearly 60 cases have been filed against more than 100 people, including 22 journalists, under the DSA this year until May 6, according to a study by Article 19, a UK-based human rights body.

Any charge will do. The disappeared journalist, Safiqul Islam Kajol, faces criminal defamation charges from the same government that whisked the reporter into nonexistence. Criminal defamation laws remain on the books solely for the purpose of allowing governments and their employees to harass and silence those who would speak out about their abuses.

In addition to the mysterious defamation charges, this same journalist faces "trespassing" charges for reappearing at the country's border. Whatever it takes to pressure someone into a plea deal where they agree they're guilty of being (1) existent and (2) critical of the government.

Make no mistake. The coronavirus is a crisis. And it's an opportunity. Governments that think their constituents should be subjected to more surveillance are arguing this justifies that expansion of power. A worldwide patchwork of cybercrime/libel/fake news laws ensures this will happen, starting with prominent journalists and ending with internet nobodies who happen to question their government's actions. The end result will be a wave of censorship -- both self- and government-ordained.

Filed Under: bangladesh, censorship, covid-19, free speech, journalism, journalists, reporting

Cops -- Newly Wary Of Looking Like Authoritarian Assholes -- Open Fire On, Arrest Journalists

from the can't-have-bad-optics-if-you-take-out-the-eyes-[taps-head] dept

There was a window of opportunity for cops following the George Floyd killing. Floyd, suspected of nothing more than passing a fake $20 bill, was killed by Officer Derek Chauvin of the Minneapolis PD. Chauvin placed his knee on Floyd's neck until he was dead. This act lasted for nearly nine minutes -- and for nearly three minutes after Chauvin checked for a pulse and found nothing. Yet he persisted, and none of the three cops around him stopped him.

Chauvin has been criminally charged and is under arrest. We'll see where that takes us. But the opportunity was there for the rest of the nation's cops to separate themselves from this "bad apple." Cop defenders ignore what bad apples do to barrels, but we won't. Chauvin is a symptom. He is not the disease.

As protests broke out around the nation, law enforcement agencies responded. While a small number attempted to find middle ground with aggrieved citizens, most acted as though they were a law unto themselves in these troubled times.

One site got it completely right -- a site that so often offers up hot takes that it is the source of its own meme. Slate, of all places, nailed this call:

Police Erupt in Violence Nationwide

And they did. They shot canisters onto the porches of people not violating curfew declarations. They shot protesters in the face with rubber bullets and tear gas canisters. And they treated the press like every authoritarian nation treats the press: as enemy combatants.

This should come as no surprise. When the shit goes down, no rights will be respected. The Fourth tends to go first, but the First is often right behind it.

First, we had to deal with the coronavirus and government grabs for power. And this is where we are now: trying to limit a rational response to hundreds of years of racism, manifested as Officer Chauvin's decision to place his knee on the neck of a black man until long after the man was dead.

The streets are filled with cameras. Cops control most of them. But they can't control journalists. So, they seek to intimidate them by making it clear their presence isn't welcomed. The current situation may heighten the response but it has been this way for years. Cops have made it clear -- and they've been backed by the Commander-in-Chief -- the press is the enemy. Journalists record things and those recordings usually make their way to many people -- far more than the average internet rando could hope to rope in. If you can't control the narrative, you can always attempt to control the journalists.

When chaos is on the menu, the cops can still try to maintain control of the reporting. And most of their sins will be forgiven because the situation was unforeseeable. But when it's happening, we can see it. We can see what they do and how they react. And, because they react badly, every unblinking eye must be closed. The power must remain centralized, and if that means taking a few journalists out, so be it.

Filed Under: 1st amendment, george floyd, journalism, police, police brutality, police violence, protests, reporters

Joe Biden Wastes A Huge Opportunity To Support Free Speech; Still Wants To 'Revoke' Section 230

from the dude,-seriously? dept

Joe Biden had a golden opportunity to actually look Presidential, and stand up for free speech and the 1st Amendment at a moment when our current President is seeking to undermine it with his Executive order that is designed to intimidate social media companies into hosting speech they'd rather not, and scare others off from fact checking his lies. And he blew it. He doubled down on the ridiculous claim that we should "revoke" Section 230.

A spokesperson for the campaign told The Verge Friday that the former vice president maintains his position that the law should be revoked and that he would seek to propose legislation that would hold social media companies accountable for knowingly platforming falsehoods.

In other words, he wants to go even further than Trump and literally wipe out free speech online. Of course, the problem with that "proposed legislation" is that it's clearly unconstitutional and the man who wishes to be President still thinks that Section 230 does what the 1st Amendment actually does. He's simply wrong in claiming that taking away 230 will magically make Facebook liable for spreading false info.

Indeed, as we've pointed out multiple times, the claim that taking away 230 will make Facebook liable for false info is itself false info. But Biden (and Facebook and anyone else) are protected in repeating that false info because of the 1st Amendment.

Biden's ongoing attacks on free speech are truly unfortunate -- especially given that Trump's silly Executive order basically put the issue on a tee for Biden to respond to. And instead, we get a plan to go even further than Trump in trying to harm the internet that enables the speech of so many people.

Filed Under: 1st amendment, cda 230, donald trump, free speech, joe biden, section 230