Cambodian Government Using Fake News Law To Silence Critics And Coronavirus Reporting

from the redefining-speech-protections-to-protect-the-gov't-against-speech dept

In 2018, Cambodia's government passed a "fake news" law. It was enacted shortly before a general election, allowing the government to stifle criticism of the Prime Minister. It also required all local websites to register with the government and put government employees to work scouring social media for violations.

The government's new power to decide what is or isn't "real" news allowed it to consolidate its power over the local press. One newspaper was sold to a Malaysian firm that also performed PR work for the Prime Minister, giving the PM the ability to produce news unlikely to ever be classified as "fake."

The appearance of the coronavirus in Cambodia has resulted in a spike in "fake news" arrests. A crisis like this shouldn't be allowed to go to waste and the Cambodian government is making the most of its new powers to silence critics, stifle dissent, and punish anyone who doesn't have nice things to say about the party in power.

Human Rights Watch documented 30 arbitrary arrests between late January and April 2020. Fourteen people remain in pretrial detention, apparently on baseless charges, including incitement, conspiracy, incitement of military personnel to disobedience, and spreading false information or “fake news.” Among those arrested in addition to the opposition activists was a journalist quoting a speech by Prime Minister Hun Sen, and ordinary Cambodians who criticized the government’s response to the Covid-19 pandemic. The authorities released two on bail, one of whom was hospitalized. Their charges remain pending.

Part of this effort is apparently meant to deter citizens from reporting accurately about the spread of infection. Cambodia reported 122 positive cases but also claims there have been no new positive COVID-19 tests in the past 16 days. It appears the government wants its citizens -- and perhaps the rest of the world -- to believe the threat has passed, or is, at least, firmly under control. Many of those arrested were accused of posting "fake news" about COVID-19 to social media.

Even directly quoting the Prime Minister appears to be a crime under this law, as well as the new powers the government handed to itself by declaring a state of emergency.

On April 7, Phnom Penh police arrested an online journalist, Sovann Rithy, for allegedly “stirring chaos by quoting from a Hun Sen speech: “If motorbike-taxi drivers go bankrupt [because of the pandemic], sell your motorbikes for spending money. The government does not have the ability to help.” The authorities charged Rithy with “incitement to commit a felony” and ordered his detention at Phnom Penh’s Police Judiciare detention facility. The Information Ministry revoked the license for his online broadcasting site, TVFB, on grounds that Rithy had broadcast information “to generate an adverse effect on the security, public order and safety of society.”

This is the way "fake news" laws are used. Very rarely do these laws target anyone spreading false information. They're almost always used to silence criticism and allow governments to control the narrative. The President of the United States popularized the term "fake news," and almost every single use of the term by Trump refers to press coverage or press outlets he doesn't personally like. It has nothing to do with the accuracy of their reporting. The same goes elsewhere in the world, but the idea to treat "fake news" as a crime, rather than protected expression, is a lot easier to enact in countries where free speech protections are more minimal. And once these laws are enacted, they'll be in place forever.

Filed Under: cambodia, covid-19, fake news, free speech, politics

If You're Complaining About COVID-19 Misinformation Online AND About Section 230, You're Doing It Wrong

from the section-230-is-helping-quell-disinformation dept

I remain perplexed by people who insist that internet platforms "need to do more" to fight disinformation and at the same time insist that we need to "get rid of Section 230." This almost always comes from people who don't understand content moderation or Section 230 -- or who think that because of Section 230's liability protections that sites have no incentive to moderate content on their platforms. Of course platforms have tons of incentive to moderate: much of it social pressure, but also the fact that if they're just filled with garbage they'll lose users (and advertisers).

But a key point in all of these debates about content moderation with regards to misinformation around COVID-19, is that for it to work in any way, there needs to be flexibility -- otherwise it's going to be a total mess. And what gives internet platforms that flexibility? Why it's that very same Section 230. Because Section 230 makes it explicit that sites don't face liability for their moderation choices, that enables them to ramp up efforts -- as they have -- to fight off misinformation without fear of facing liability for making the "wrong" choices.

Without Section 230, these businesses would have had to vet every single post’s truthfulness and legality. Not only would that have bogged down businesses’ response, it also would have been impossible — we knew little about coronavirus when it first hit and don’t know much more today.

Put simply, Section 230 helps make the internet safer, and that, in turn, has let us all rely on it to keep life moving, even while we’re stuck inside.

I'd argue it's even more stark than that article lays out. Not only did we know little about the coronavirus at the beginning, we still don't know very much and many of the early messages from official sources turned out to be wrong. Indeed, one of the ways that we've zeroed in on more accurate information is by being able to discuss ideas freely and zero in on what makes the most sense.

This whole process involves experimentation on both sides of this market. The platform players get to experiment with different methods and ideas for content moderation, while users get to discuss and debate different ideas about COVID-19. But both of those only happen with the structural balance provided by Section 230. Platforms can experiment to figure out what works best to enable reasonable debate and move people towards more accurate analysis -- while minimizing the impact of blatantly wrong information, misinformation, and disinformation. And users get to discuss and debate ideas to get closer to the truth themselves. Without the balance of Section 230, you create massive structural problems that prevent most of that from happening.

Without 230, companies face the classic moderator's dilemma. Doing no moderation at all is one option -- but then that lets disinformation flow freely, and companies might face liability for that disinformation. Alternatively, they could moderate very thoroughly, and pull down lots of information. But that might actually include good and useful information. For example, the discussion over whether or not people should wear masks as the pandemic began was all over the place with the WHO and the CDC initially urging people not to wear masks. However, in part because of widespread discussions and evidence presented on social media, the narrative shifted and eventually the CDC and WHO came on board with the recommendation to wear masks.

Without 230, what would a platform do regarding the mask discussion? Someone at the company could unilaterally decide that masks are a good thing -- but then face outrage from those who supported the WHO and CDC, and they would argue that the platform is spreading dangerous misinformation that could lead to hoarding and fewer masks for medical professionals. And that, alone might create lawsuits (in the absence of 230). Or they could follow what the WHO and CDC said initially... and then might feel obligated to silence and delete the conversations which argued, persuasively, why masks actually are valuable. And that would create all sorts of problems as well. At the same time, there is actual misinformation about what types of masks to wear and how -- and there are strong arguments for why platforms should be able to moderate that.

But all of that becomes much trickier, and much riskier, without a Section 230 -- and the greatest likelihood is that platforms will seek to avoid liability, and that will mean censoring plenty of good and important information (such as how to make or wear masks and why they're so important). It's Section 230 that has enabled both platforms to adjust their moderation techniques and the important public discussions that allow people to share, debate, and discuss as we figure out what is going on and how best to deal with it.

Filed Under: cda 230, content moderation, content moderation at scale, covid-19, disinformation, misinformation, section 230

China Tried To Get The EU Not To Release A Report On China's COVID-19 Disinformation Efforts

from the and-that's-not-disinformation dept

It's becoming an unfortunate regularity that we keep writing posts highlighting how China is trying to suppress criticism around the globe regarding its terrible handling of the COVID-19 pandemic. As we've said over and over again, what the world needs right now is radical transparency regarding the disease and various responses, and instead we're getting standard operating procedures from the Chinese government which is all about suppressing bad information and denying everything (with a healthy does of spreading more disinfo everywhere -- make sure you check the comments here a few hours after we post this, because it seems to show up in a timely manner).

The latest example comes from the EU, where the Chinese government pressured officials in Brussels not to release a report about the Chinese government's disinformation efforts regarding COVID-19. While the EU did eventually release it, it put it out on a Friday evening (the classic news dump of where you hide stuff) and some of the criticism of China was supposedly "rearranged or removed."

Four diplomatic sources told Reuters that the report had initially been slated for release on April 21 but was delayed after Chinese officials picked up on a Politico news report hat previewed its findings.

A senior Chinese official contacted European officials in Beijing the same day to tell them that, “if the report is as described and it is released today it will be very bad for cooperation,” according to EU diplomatic correspondence reviewed by Reuters.

The correspondence quoted senior Chinese foreign ministry official Yang Xiaoguang as saying that publishing the report would make Beijing “very angry” and accused European officials of trying to please “someone else” - something the EU diplomats understood to be a reference to Washington.

The four sources said the report had been delayed as a result, and a comparison of the internal version of the report obtained by Reuters and the final version published late Friday showed several differences.

For reasons that are unclear, Reuters, despite breaking this story and it seeming to be an opportune time and place to do so, does not link to the report that was released. You can read it here. It seems to focus mostly on Russian disinfo campaigns, and, while it does include China, suggests that China is less active in such disinformation campaigns. Also, the key parts about China are at the very end of the document, which is apparently not where they were originally.

Once again, I completely understand that this is status quo for the Chinese government, but honestly, you would hope that in the midst of a global pandemic insecure, thin-skinned governments (and yes I'm including my own government in this) would grow up, get over it, and focus on providing the public with real info, rather than spreading nonsense and FUD.

Filed Under: china, covid-19, disinfo, disinformation, eu, pressure

How Can Anyone Argue With A Straight Face That China's Approach To Speech Online Is Better Than The US's During A Pandemic

from the authoritarian-nonsense dept

We've been writing a number of pieces lately about how incredibly dangerous China's internet censorship has been during COVID-19, from silencing medical professionals to hiding research results tod trying to ignore Taiwan's success in fighting COVID-19, it's shown a pretty clear pattern that Chinese internet censorship is literally killing people. This is not to say that the US government's response has been much better -- it's obviously been a disaster, but at least we have more free speech online and in the press, which is enabling all sorts of useful information to spread.

But you might not know that if you read this odd piece in the Atlantic by Jack Goldsmith and Andrew Keane Woods arguing that China has the right approach to handling free speech online during a pandemic, and the US has not. While the overall piece is, perhaps, a bit more thoughtful than the headline and tagline, it has moments that simply defy any sense of what's happening in the world.

In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.

Again, this defies all evidence of what we've seen to date.

The piece, bizarrely, conflates pervasive digital surveillance with open free speech online:

Two events were wake-up calls. The first was Edward Snowden’s revelations in 2013 about the astonishing extent of secret U.S. government monitoring of digital networks at home and abroad. The U.S. government’s domestic surveillance is legally constrained, especially compared with what authoritarian states do. But this is much less true of private actors. Snowden’s documents gave us a glimpse of the scale of surveillance of our lives by U.S. tech platforms, and made plain how the government accessed privately collected data to serve its national-security needs.

And that's got literally nothing to do with America's approach to free speech online.

The "second" wake up call does relate to speech, but perhaps not in the way the authors mean:

The second wake-up call was Russia’s interference in the 2016 election. As Barack Obama noted, the most consequential misinformation campaign in modern history was “not particularly sophisticated—this was not some elaborate, complicated espionage scheme.” Russia used a simple phishing attack and a blunt and relatively limited social-media strategy to disrupt the legitimacy of the 2016 election and wreak still-ongoing havoc on the American political system. The episode showed how easily a foreign adversary could exploit the United States’ deep reliance on relatively unregulated digital networks. It also highlighted how legal limitations grounded in the First Amendment (freedom of speech and press) and the Fourth Amendment (privacy) make it hard for the U.S. government to identify, prevent, and respond to malicious cyber operations from abroad.

Yes, the Russians conducted a misinformation campaign -- but it still remains unclear how effective that was beyond at the margins (and, to be fair, in a close election, the margins can be meaningful). But that's hardly a reason to throw out the 1st Amendment. The 1st Amendment has also allowed there to be widespread discussion and debate about all of this, and has helped to get companies better situated to deal with and respond to disinformation campaigns. It has also allowed tons of people to be on the digital frontlines pointing out mis- and dis-information and working on responding to it to limit its impact. There will always be some and there will always be attempts to exploit it, but the idea that China's approach is better seems totally counterfactual to reality (or what plenty of people who have suffered from Chinese internet censorship will tell you).

Incredibly, the authors blame Section 230 for "the free for all" online... but then when they talk about the companies trying to combat disinfo just two paragraphs later, they somehow miraculously leave out the fact that it's Section 230 and the 1st Amendment that allow them to moderate the content on the platform:

Ten years ago, speech on the American Internet was a free-for-all. There was relatively little monitoring and censorship—public or private—of what people posted, said, or did on Facebook, YouTube, and other sites. In part, this was due to the legal immunity that platforms enjoyed under Section 230 of the Communications Decency Act. And in part it was because the socially disruptive effects of digital networks—various forms of weaponized speech and misinformation—had not yet emerged. As the networks became filled with bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content, private platforms faced growing pressure from governments and users to fix the problems.

[....]

After the 2016 election debacle, for example, the tech platforms took aggressive but still imperfect steps to fend off foreign adversaries. YouTube has an aggressive policy of removing what it deems to be deceptive practices and foreign-influence operations related to elections. It also makes judgments about and gives priority to what it calls “authoritative voices.” Facebook has deployed a multipronged strategy that includes removing fake accounts and eliminating or demoting “inauthentic behavior.” Twitter has a similar censorship policy aimed at “platform manipulation originating from bad-faith actors located in countries outside of the US.”

It's the American approach to free speech that makes this even possible.

Then the article argues that misinformation in the age of COVID-19 is something... new. And that it's so serious that perhaps we should change how we think about free speech:

What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated “normal” to return to. We live—and for several years, we have been living—in a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.

Note that they seem to be conflating a few things here. There is the US government's approach to speech (bound by the 1st Amendment, there are very few areas where speech may be limited), and there are internet companies' approaches to hosting speech upon their private platforms. And while those platforms are becoming more aggressive in cracking down on misinformation, there remain plenty of other platforms online that are chock full of misinformation as well. But that's got little to do with our laws (beyond the fact that, as noted above, the 1st Amendment enables platforms to decide for themselves how to handle these things).

But it seems odd for an article that suggests a governmental approach to stifling speech is a good idea literally days after the US President suggesting injecting disinfectant into people as a way to deal with COVID-19. It's not the internet that is the cause of misinformation, guys. And saying that government should crack down on misinformation isn't going to work when it's the head of state spouting off the misinformation, which is then broadcast live by TV networks.

The article then tries to tie free speech to surveillance, but I'm unclear why or how those two things are as connected as the article suggests they are. You can have one without the other -- yet the article continues to assume that if you want free speech, then you must have mass surveillance along with it. It uses the examples of Clearview AI and Ring as examples of greater surveillance, but those have little to nothing to do with the American approach to free speech.

The article all too glibly insists that private company data tracking is the "functional equivalent" of the infamous social score now used in China, without recognizing a number of fundamental differences -- with the largest being the fact that the social score in China is a government program and is used in all sorts of nefarious ways. Yes, the article argues that thanks to COVID-19 it's likely that the US government and companies will be more closely tied, but gives no reason to support that conclusion as inevitable:

Apple and google have told critics that their partnership will end once the pandemic subsides. Facebook has said that its aggressive censorship practices will cease when the crisis does. But when COVID-19 is behind us, we will still live in a world where private firms vacuum up huge amounts of personal data and collaborate with government officials who want access to that data. We will continue to opt in to private digital surveillance because of the benefits and conveniences that result. Firms and governments will continue to use the masses of collected data for various private and social ends.

The harms from digital speech will also continue to grow, as will speech controls on these networks. And invariably, government involvement will grow. At the moment, the private sector is making most of the important decisions, though often under government pressure. But as Zuckerberg has pleaded, the firms may not be able to regulate speech legitimately without heavier government guidance and involvement. It is also unclear whether, for example, the companies can adequately contain foreign misinformation and prevent digital tampering with voting mechanisms without more government surveillance.

The First and Fourth Amendments as currently interpreted, and the American aversion to excessive government-private-sector collaboration, have stood as barriers to greater government involvement. Americans’ understanding of these laws, and the cultural norms they spawned, will be tested as the social costs of a relatively open internet multiply.

COVID-19 is a window into these future struggles.

Perhaps. It will certainly be interesting to see where the future heads, but the idea that COVID-19 inevitably means that the US will be less speech protective in the future is far from the only possible path forward. And the idea that China somehow has the right idea has little support anywhere. The authors may be correct that the government will try to expand surveillance and limit speech, but that's been happening for years. COVID-19 changes little in that regard.

Filed Under: andrew keane woods, authoritarianism, censorship, content moderation, covid-19, free speech, freedom, internet, jack goldsmith, moderation, pandemic, surveillance

Reluctant To Block Embarrassing Coronavirus Material Held On GitHub, China Targets The People Who Put It There

from the rewriting-history dept

Over the years, Techdirt has written many stories about the various forms that censorship has taken in China. The coronavirus pandemic has added an extra dimension to the situation. China is evidently trying to erase certain aspects of the disease's history. In particular, it seeks to deny its likely role in acting as the breeding ground for COVID-19, and to downplay how it infected the rest of the world after the initial outbreak in Wuhan. As the New York Times put it: "China is trying to rewrite its role, leveraging its increasingly sophisticated global propaganda machine to cast itself as the munificent, responsible leader that triumphed where others have stumbled." Quartz reports on a new front in this campaign to re-cast China's actions. Volunteers in China working on a project called Terminus2049, which aims to preserve key digital records of the coronavirus outbreak, are now targets of a crackdown:

During the outbreak, the project shifted its focus to storing articles including a Chinese magazine's interview (link in Chinese) with Wuhan doctor Ai Fen, who said she was the first to reveal the existence of the epidemic but who was later reprimanded. The article, first published in March, was taken down within hours of publication, spurring a race among internet users who used various creative ways, including coded language and emojis, to keep the article alive. Terminus2049 also preserved a strongly worded critique (link in Chinese) aimed at Chinese leader Xi Jinping penned by outspoken professor Xu Zhangrun. In the essay, Xu attacked Beijing's social controls and censorship. He was later reportedly placed under house arrest and his account has been suspended on WeChat.

For obvious reasons, the Chinese authorities are not saying whether the actions taken against three of the volunteers are specifically because of the coronavirus material, but it certainly seems likely given the fate that has met other COVID-19 whistleblowers, critics and journalists. Terminus2049 is hosted on Microsoft's GitHub, as were other similar projects that aimed to preserve coronavirus memories -- including those that were critical of the Chinese government and its response to the outbreak. The reason GitHub is popular for this kind of non-coding material is that its importance as a resource for Chinese programmers has become so great that the authorities in the country have so far been unwilling to block access to it. Since they can't remove the embarrassing posts, they target the people behind the projects, as the latest moves confirm. Unless activists can keep their identities hidden -- something that is hard in a society where surveillance is pervasive -- this kind of reprisal is an ever-present risk. As such, it is one of the most powerful weapons that the authorities can deploy in order to silence unwanted voices.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: china, covid-19, crackdown, digital records, free speech, transparency
Companies: github, microsoft

Sean Hannity Hires Charles Harder To Threaten The NY Times And Its Reporters, Because Of Course He Does

from the ah,-that-old-first-amendment,-what-is-it-good-for dept

Last month, Kara Swisher wrote an opinion piece for the NY Times ripping Sean Hannity and Fox News to shreds for convincing her mother that COVID-19 wasn't going to be too bad back in February and leading into March. It's notable how she started her piece:

You can relax, Sean Hannity, I’m not going to sue you.

Some people are suggesting that there might be grounds for legal action against the cable network that you pretty much rule — Fox News — because you and your colleagues dished out dangerous misinformation about the virus in the early days of the crisis in the United States. Some might allege that they have lost loved ones because of what was broadcast by your news organization.

But lawsuits are a bad idea. Here’s why: I believe in Fox News’s First Amendment right as a press organization, even if some of its on-air talent did not mind being egregiously bad at their jobs when it came to giving out accurate health data.

Apparently, Hannity does not have the same respect for the 1st Amendment, because after throwing a complete shit-fit over Swisher's piece, he's now hired lawyer Charles Harder (who, full disclaimer, represented the guy who sued us a few years back, and is now also representing the Trump campaign in an ongoing series of SLAPP suits designed to chill the press) to send a truly ridiculous SLAPP threat letter to the NY Times over Swisher's piece and a couple of other NY Times pieces that have criticized Hannity or noted accurately the times he played down the threat of the virus.

I should note, in passing, that Harder might want to take into consideration what happened to the last lawyer who simultaneously represented Donald Trump and Sean Hannity.

Anyway, the letter focuses on the claims that Hannity also talked about how serious COVID-19 might be. He did do this, but at the same time, frequently was seen doing his usual boosterism of the President's "everything's fine here" messaging, by blaming the "mainstream media" and "the left" for "politicizing" COVID-19 by criticizing the President.

The point that the NY Times was making in its pieces was that in his repeated efforts to play up the President's (misleading) messages of everything being fine, many people (including Swisher's mother) didn't believe the disease was as serious as it really was. That can absolutely be true even if at other times Hannity did say the disease could be serious. You can argue that both sides are cherry-picking here, but that's hardly defamatory. Notably, the best that Harder and Hannity can do here is say that the NY Times implied false things, not that they actually said false things -- which again shows how weak any defamation claim would be:

As detailed herein, the Stories, at the very least, impart the false and defamatory inference that (1) Mr. Hannity’s on-air statements (on March 9, 2020) caused Mr. Joyce to believe it was a safe to take a cruise on March 1, 2020, that apparently led to his death; and (2) Mr. Hannity (allegedly) disseminated “misinformation” about the pandemic. Both of these implied statements are completely false. Moreover, the language in the April 18, 2020 Story reflects that you intended these false inferences, by how you deliberately manipulated the wording to create the false narrative. The Stories also encourage readers to draw the false conclusion that Mr. Hannity has no concern for the lives of his viewers.

I mean, if we're going to be suing based on what other people believe you implied, then, uh, Hannity might be opening himself up to lawsuits as well. Except that in most cases, your interpretation of what someone "implied" is the opposite of defamatory, because it's based on interpretation, not actual statements of fact.

The letter also goes on a long rant claiming that the NY Times ignored the fact that Democratic politicians played down the threat as well, and that the "mainstream media" also played it down as well. This has become a key talking point from Fox News and Trump folks, but as Cathy Young pointed out in an excellent Bulwark piece, many of those complaints are taken way out of context (and Young is not someone who is often found defending mainstream media organizations).

Either way, the letter makes it clear that, unlike Kara Swisher's respect for the US Constitution and the 1st Amendment, Sean Hannity, with Harder's help, is ready to sue the NY Times.

Please confirm in writing within twenty-four (24) hours of transmission of this letter that you will retract, correct and apologize for each of the foregoing statements. Failure to do so will leave Mr. Hannity with no alternative but to consider instituting immediate legal proceedings against you. Should that occur, Mr. Hannity would pursue all available causes of action and seek all available legal remedies to the maximum extent permitted by law, including without limitation, actual damages, special damages, punitive damages, and temporary and permanent injunctive relief.

The NY Times, of course, is not usually one to back down from defamation threats, and wasted little time in responding:

“We’ve reported fairly and accurately on Mr. Hannity and there is no basis for a retraction or an apology.”

Once again, right about now, it sure would be nice if New York had a real anti-SLAPP law instead of the heavily limited anti-SLAPP law it currently has. Oh, and also we still need a federal anti-SLAPP law to stop these abusive, censorial threats and lawsuits. But, considering how vocal Sean Hannity is about how much he "loves" free speech, suing the NY Times because it "implied" he played down the threat of COVID-19 suggests otherwise.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, free speech, kara swisher, sean hannity, slapp
Companies: fox news, ny times

The Supreme Court Needs To Reverse The Fifth Circuit's Awful Ruling In The DeRay McKesson Case

from the not-as-much-First-Amendment-in-the-South-right-now dept

Whenever our nation's court system resumes to normalcy, there will hopefully be another case on the Supreme Court docket that could clarify if someone who engages in protected speech can be held responsible for violent actions of someone else at the same protest.

Activist DeRay McKesson participated in a Black Lives Matter protest in Baton Rouge, Louisiana following the shooting of Alton Brown by police officers. During this protest, someone threw a chunk of concrete at a cop, injuring him. The officer -- known only as "John Doe" in his filings -- sued McKesson (along with the entire Black Lives Matter movement and, inexplicably, a set of Twitter hashtags).

The district court found in favor of McKesson, saying he wasn't directly or indirectly responsible for the actions of other protesters, even if the protest began with protesters illegally blocking traffic. Officer Doe appealed. Inexplicably, the Fifth Circuit Appeals Court refused to address the First Amendment issue, finding instead that -- under state law -- McKesson could continue to be sued for participating in the same protest where this mystery cop was injured.

McKesson asked the Fifth Circuit to take a second look at its awful decision. It did and liked what it had said the first time around. The only exception was Judge Don Willett, who belatedly recognized the First Amendment issue was paramount and that allowing protest organizers to be personally sued for the violent actions of others was extremely bad precedent to set.

That's where the Supreme Court might be able to help. If it takes the case, it can reverse this precedent -- one that stands not-so-firmly on a 8-8 split between Fifth Circuit judges. Constitutional law professor Garrett Epps has a thorough rundown of the case's history at The Atlantic. Epps says the wild card in play is not the recently-apologetic Judge Willett, but rather another member of the court, Judge James Ho, who seems determined to make Constitutional rights subservient to the needs and wants of police officers.

As for the First Amendment question, [Judge Ho] said, Mckesson deserves to lose.

Why? Claiborne Hardware concerned a boycott by NAACP leaders of white stores in Port Gibson, Mississippi. The boycott demanded an end to racist hiring practices in those stores. Ho now claimed this made Mckesson’s case completely different:

"The theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities."

This description of Claiborne Hardware—that the Mississippi law at issue in Claiborne Hardware contained a racial element, making the ruling applicable to protests against segregation only—is, not to put too fine a point on it, swill. I cannot find anything in the record to support it.

In Ho's estimation, not participating in the right kind of protest strips protesters of their First Amendment protections and makes them civilly responsible for the acts of other attendees. Since this protest of the killing of a black man by cops didn't agitate against racists laws, McKesson can be sued for an injury sustained by a police officer while policing the protest. Nothing in settled law supports Ho's view, but Ho's vote still counts and that makes an 8-8 tie as good as a win for the anonymous cop.

As Epps sees it, this is Judge Ho being Judge Ho -- a judge who has a track record for siding with law enforcement officers for dubious reasons, including one case where he criticized the lawyer of a 12-year-old student challenging a warrantless search of his pants pockets so harshly the Appeals Court withdrew his decision.

I have no idea why Judge Ho would distort the record this way. But I do note that he has already made clear that he sees protecting police as a major concern. He has tortured the facts of Mckesson in a way that preserves the possibility that police can sue demonstrators. Since the en banc court did not vacate it, the panel’s third opinion—demonstration organizers can be held liable for the actions of others—remains good law in the Fifth Circuit.

Letting this decision stand chills expressive activity in the Appeals Court's jurisdiction. It allows for the punishment of expressive activity via lawsuits targeting organizers and prominent activists any time a government employee suffers an injury while responding to a demonstration. The end result will be fewer protests, which may be exactly what half the judges on this court want.

Filed Under: 1st amendment, 5th circuit, alton brown, baton rouge, black lives matter, deray mckesson, free speech, protests, supreme court

New Jersey Corrections Officials (Temporarily) Banned Released Prisoners From Talking To Journalists

from the furloughing-rights dept

Our nation's prisons and jails are coronavirus incubators. Everyone inside is stacked on top of each other and the notion of "social distance" doesn't have much meaning in a place where sheltering in place means breathing the air of everyone else being forcibly sheltered in place.

Taking the risk of appearing soft on crime, some states have begun releasing at-risk prisoners, subject to a long list of exceptions that still leaves plenty of people in jail (and plenty of people tasked with watching over them). Since most crimes don't come with death sentences, it seems kind of cruel and unusual to subject minor criminals to the increased possibility of dying, but only a small percentage of inmates meet the criteria for release.

However, enough of them have that Rikers Island -- New York City's most infamous jail -- has seen its population dwindle to its World War II numbers. Like most jails, Rikers Island's population includes people who have yet to be convicted of a crime -- jailed until their trial date. With courts handling fewer cases than usual, jailings have become more indefinite than usual while awaiting trial.

Testing has ramped up in federal prisons and local jails, bringing with them severe spikes in confirmed cases. This never looks good on the COVID-19 balance sheet, but jam enough people into enclosed spaces and bad things develop quickly during pandemics.

Releasing at-risk inmates is a good idea, even if it's still mostly an unpopular one. The state of New Jersey decided to show some much-needed compassion by releasing some of its inmates. But that compassion came tied to a long list of restrictions that somehow included First Amendment violations, as NJ.com reports.

As New Jersey prepares to temporarily release some state prison inmates to stem a spike in coronavirus deaths behind bars, corrections officials threatened to throw anyone who talked to the media back in their cells, NJ Advance Media has learned.

The gag order was among more than two dozen conditions prisoners had to agree to in order to get temporary medical leave under an executive order signed by Gov. Phil Murphy this month, which sought to reduce prison populations by moving sick, elderly and other prisoners to home confinement.

Fortunately, this bonus Constitutional violation was stripped from the updated list [PDF] of requirements and restrictions given to released inmates. But it only happened after the ACLU complained to the state attorney general about the unconstitutional aspects of the release terms.

According to a spokesperson for the state's correctional facilities, this First Amendment blunder was the result of copy-pasting a bunch of home release stuff into a single one-size-fits-all document. That apparently included restrictions commonly placed on prisoners still in prison, but not one routinely foisted upon them once they're no longer under the guardianship of the state's correctional facilities.

That was the only comment given by the state on the issue, leaving unanswered questions about any vetting of the document before release or who might have greenlit the violation of released prisoners' rights.

It's not as though many temporarily furloughed prisoners will have much of an opportunity to talk to the media. The restrictions forbid leaving their homes for anything but a medical emergency and requires twice-a-day check-ins. It also forbids them from opening bank accounts, securing loans, operating vehicles, or getting married while they're under house arrest.

While it's good to see the unconstitutional ban on talking to the media was quickly excised once state officials were made aware of it, it's concerning that no one presiding over the temporary release took a better look at the restrictions before making them official.

Filed Under: 1st amendment, covid-19, early release, free speech, journalism, new jersey, prisons

Public Colleges Are Violating The 1st Amendment In Using Facebook Filters

from the the-1st-amendment-applies dept

We've discussed in the past the various court rulings that say that public officials (such as the President) cannot block users on social media as it violates the 1st Amendment. There has been vigorous debate on this (as well as plenty of confusion) but the basic concept is that the courts view the space beneath a social media post -- where people comment -- as a "designated public forum" and as such, bars any content-based discrimination.

That should apply to all government institutions -- not just the social media accounts of those holding elected office. A fascinating new report from FIRE, digs deep into this issue by highlighting that tons of public universities are using opaque Facebook blocklists to hide student comments. For private universities, it wouldn't be a 1st Amendment issue, but courts have repeatedly said that public universities are an arm of the government, and thus Constitutional limits apply to them as well. From the opening of the report:

In October 2019, Facebook founder and chief executive officer Mark Zuckerberg spoke at Georgetown University, extolling the virtues of freedom of expression and noting in particular the importance of college students’ ability to “express who they were and what mattered to them,” including through “challeng[ing] some established ways of doing things on campus.”

Because Facebook is a private entity, the First Amendment— which only limits government actors—does not require it to honor expressive freedom. Zuckerberg’s endorsement of freedom of expression as a principle is a welcome and encouraging development.

It is, however, at odds with the fact that Facebook provides governments the tools to censor. These actors include public universities and colleges which are bound by the First Amendment—those very campuses where students have “challenged some established ways of doing things.”

These tools include Facebook’s automated content filters, which allow state institutions to automatically “hide” users’ comments if they contain words included on Facebook’s undisclosed list of offensive words or the government actor’s customized list of prohibited words. These tools enable public universities—and other government actors— to quietly remove critical posts, transforming the Facebook pages into less of a forum and more of a vehicle for positive publicity.

And yes, this does create a serious 1st Amendment issue:

“There’s no social media exception to the First Amendment,” said Adam Steinbaugh, author of the FIRE report. “Government actors cannot sanitize public discourse — whether it’s President Trump blocking Twitter critics or American colleges filtering dissent on their social media accounts. By selectively eliminating particular viewpoints, universities are violating the First Amendment.”

The report contains numerous examples of problematic filters:

• The University of Kentucky blocks the words “birds,” “chicken,” “chickens,” and “filthy,” presumably to censor criticism of Aramark, the company that provides food for the university under a $250 million contract.
• A number of institutions, including Portland State University, Oklahoma State University, the University of Arizona, and the University of North Carolina at Chapel Hill, blocked the names of political candidates, such as “Trump,” “Bernie,” or “Hillary.”
• During protests over the “Silent Sam” Confederate monument, the University of North Carolina at Chapel Hill blocked posts containing the phrase “Silent Sam,” as well as mentions of “Nazis.”
• Texas A&M University blocks references to the “hook em” horn gesture of their University of Texas at Austin rivals, the Longhorns. Oklahoma State University blocks mentions of its rival football team, including the phrases “boomer sooner” (OU’s fight song), “university of oklahoma,” and “sooners.”
• Not to be outdone by its rival, the University of Oklahoma blocks an emoji.
• Texas A&M blocked terms “peta” and “abuse” to frustrate criticism by animal rights activists, including People for Ethical Treatment of Animals, over research conducted on dogs. Santa Monica College likewise bars “cats,” “dissecting,” “torture,” and “killing” following a PETA campaign criticizing cat dissection in an anatomy course.
• Clemson University blocked mentions of Harambe, a gorilla featured in many internet posts, after a controversy in which it denied censoring Harambe memes.
• The University of Arizona automatically removes posts containing the word “rape” or the name of a preacher known for holding signs reading, “You Deserve Rape.” This restriction presumably removes complaints about the preacher.
• Suffolk County Community College (NY) blocks posts concerning inclement weather, including terms that demonstrate that the purpose is to inhibit criticism, barring the words “blizzard,” “snow,” “dangerous,” “slip,” “scared,” “irresponsible,” “tragedy,” and “accident.” The college also blocks “apologize,” “resign,” and “disgrace.”

The report also notes that -- even more closely related to the Trump case -- that many public universities block user accounts:

• The University of Kansas blocks “Boycott Koch Industries,” a Facebook account referencing America’s second-largest privately-held company, which is based in Kansas and is a major donor to the university.
• Georgia State University blocked a “Georgia for Bernie” Twitter account.
• The University of New Hampshire blocked a Twitter account belonging to “UNH Students for Gary Johnson,” a Libertarian Party presidential candidate.
• Mississippi State University blocks “Legalize Marijuana in Mississippi.”
• The University of Utah blocks animal rights activists, including PETA.
• The University of Alaska Anchorage blocked an “Alaskans4Trump” account.

Because of this, FIRE, together with EFF, have sent a letter to Mark Zuckerberg, asking him to help fix this issue:

Facebook can curb abuse of its tools through transparency and restrictions on accounts belonging to state actors. As our report recommends, Facebook should:

• Distinguish between government and non-government accounts. Require government officials to designate and identify themselves as such.
• Require government actors to establish public-facing policies. Moderation tools should only be available if a government actor has established a public content policy.
• Keep filters “off” by default.
• Alert users when their comment has been filtered on a government actor’s page.
• Make public the words contained on the profanity filter. Government actors should not be able to make use of a secret list of forbidden words.
• Provide tools and reminders for government accounts. Alert government actors that if they use moderation or blocking tools, they may violate the First Amendment. If a

For what it's worth, this is also a good example of how FOIA laws help aid in transparency. Part of the report was developed via heavy use of FOIA and similar laws to request the details of the social media filters used by public universities:

Altogether, FIRE’s survey issued public records requests to 224 public universities and colleges in 47 states and the District of Columbia. 198 institutions provided substantive responses.

While some may have arguments for why colleges should be allowed to filter aspects of their social media accounts, when we're talking about public universities, the 1st Amendment needs to apply.

Filed Under: 1st amendment, blocking, filters, public universities, social media filters
Companies: facebook

Sheriff Sued After Threatening To Arrest A High School Student Over Her Coronavirus-Related Instagram Posts

from the shouting-'arrest'-in-a-pandemic dept

Law enforcement officers and officials are given a considerable amount of discretion. Too bad they so rarely use it.

The sheriff of Marquette County, Wisconsin decided to exercise his considerable discretion by threatening a teenager's parents with jail over her Instagram posts. And for that misuse of his discretion, Sheriff Joseph Konrath is being sued. (h/t SBWisLaw)

A high school sophomore sued the Marquette County sheriff Thursday after he threatened to take her or her family to jail for her post on Instagram warning that she believed she had been infected with coronavirus.

The student, Amyiah Cohoon, went on a spring break trip with her class to Florida. It was cut short due to coronavirus concerns. Once she returned home, she developed COVID symptoms and went to the doctor. After a couple of hospital trips, she tested negative for the virus but was advised it was possible she had had it earlier but had been tested too late to get a positive result.

As was the style at the time, Cohoon made some social media posts about her health situation that weren't entirely accurate.

She posted three messages on Instagram about her situation — one saying she wouldn't be back for a while because she had coronavirus, one saying she might have to stay in the emergency room and one with her wearing an oxygen mask.

"I am still on breathing treatment but have beaten the coronavirus. Stay home and be safe," she wrote in the last post.

These may have been slightly exaggerated. But they also could have been 100% truthful. The teen probably had no way of knowing. The lawsuit [PDF] quotes a release form from the ER saying Cohoon showed symptoms "consistent with COVID-19." Not only that, but health experts have discovered some infected patients are testing negative for the virus.

Consistent with what the doctors told the Cohoons, some health experts believe that “nearly one in three patients who are infected [with COVID-19] are nevertheless getting a negative test result.” See Christopher Weaver, Questions About Accuracy of Coronavirus Tests Sow Worry, Wall Street Journal (Apr. 2, 2020).

Whether or not the posts were 100% accurate, the response from the Sheriff's Department was 100% idiotic.

During the evening on March 27, Defendant Patrol Sergeant Cameron Klump from the Marquette County Sheriff’s office came to the Cohoons’ home. Amyiah answered the door, and Sergeant Klump said he needed to speak with her father.

After Mr. Cohoon came outside, Sergeant Klump explained that the school “superintendent” had complained to Defendant Sheriff Joseph Konrath about one of Amyiah’s Instagram posts. Sergeant Klump showed Mr. Cohoon a screenshot of Amyiah’s third Instagram post (described in paragraph 33 above). A true and accurate copy of the cropped screenshot Sergeant Klump showed Mr. Cohoon is attached hereto as Exhibit 5.

Sergeant Klump stated that he had direct orders from Sheriff Konrath to demand that Amyiah delete this post, and, if she did not, to cite Amyiah and/or her parents for disorderly conduct and to “start taking people to jail.”

The sergeant also claimed Sheriff Konrath wanted the post removed "because there were no confirmed COVID-19 cases in the county at the time."

The sergeant then told Amyiah directly that the sheriff had ordered him to issue citations for disorderly conduct if her post was not removed. Fearing her parents would be arrested, Amyiah deleted her posts.

Clearly, this conduct violated Amyiah's First Amendment rights. If the best you can offer is something vague about "disorderly conduct," you really have no case. Whether or not the posts were 100% medically accurate is beside the point. And the statements made by the sheriff's deputy suggest the only reason the sheriff was demanding their removal was to keep the county's case numbers at zero. Secondary to that was mollifying the school, which has issued its own stupid statement about Amyiah's posts.

Administrator Meicher’s update stated that, “It was brought to my attention today that there was a rumor floating out there that one of our students contracted Covid-19 while on the band trip to Florida two weeks ago. Let me assure you there is NO truth to this. This was a foolish means to get attention and the source of the rumor has been addressed. This rumor had caught the attention of our Public Health Department and she was involved in putting a stop to this nonsense. In times like this, the last thing we need out there is misinformation…"

The lawyer representing the sheriff has confirmed the actions taken by the sheriff violated Amyiah's rights... if only inadvertently. Not all lawyers are Constitutional experts, but any lawyer engaged in defending someone against First Amendment claims should know better than to say something like this:

Sam Hall, an attorney for the sheriff, said the teenager "caused distress and panic" among other parents by claiming she had contracted the coronavirus despite getting a negative test result. (And the Milwaukee Journal Sentinel -- beneficiary of First Amendment protections -- should definitely know better than to state this refers to speech not protected by the Constitution.)

"This case is nothing more than a 2020 version of screaming fire in a crowded theater," he said, referring to speech that is not protected by the First Amendment.

This is a tell that your litigation opponent is the sucker at the table. That line is pulled from a Supreme Court decision that treated certain anti-war speech as a criminal offense, rather than protected speech. This precedent was walked back in a later Supreme Court decision. And it's notable that everyone who quotes this line to defend their First Amendment violations omits one key word: "falsely." It's not illegal to truthfully scream fire in a crowded theater or even to do so while the existence of an actual fire may still be in dispute. The smell of smoke alone can justify shouts of fire.

If this is the legal defense the sheriff plans to mount ("aggressively," according to his legal rep), he's screwed. The school could have spoken to the student's family directly and expressed its concerns with the post. And that may have been resolved amicably. Or everyone could have done nothing and lived through the apparent panic Amyiah's posts failed to provoke. But everyone got stupid and now there's a Constitutional lawsuit to be dealt with. Discretion is only a positive when it's exercised in a way that's beneficial.

Filed Under: 1st amendment, amyiah cohoon, covid-19, free speech, high school, marquette, wisconsin