Australian Court Says Raid Of Journalist's Home Was Illegal... But Allows Federal Police To Keep The Evidence They Seized

from the wrong-but-not-wrong-enough-I-guess dept

Last year, the Australian government decided journalists just weren't feeling chilly enough. In response to the publication of leaked documents detailing the government's plan to allow more domestic surveillance, the Australian Federal Police started raiding journalists' homes.

They started with News Corp. journalist Annika Smethurst's home. Hours later, police raided broadcaster Ben Fordham's home. A third raid was broadcast live, as the AFP swarmed ABC's offices seeking documents that might reveal who leaked sensitive documents to journalists.

Australia's prime minister, Scott Morrison, had no problem with this cop-based threat to the country's free speech protections.

Asked if the news troubled him, he said: “It never troubles me that our laws are being upheld.”

The laws aren't being upheld. That's the determination of the country's highest court. In fact, they're being broken.

News Corp. journalist Annika Smethurst went to the High Court to overturn the warrant that was executed on her Canberra home in June last year and triggered a national campaign for greater press freedom.

The seven judges unanimously agreed that the warrant was invalid, partly because it failed to state the offense suspected with sufficient precision.

Unfortunately, the court didn't go so far as to uphold protections for journalists that should shield them from law enforcement raids seeking to uncover their sources.

But the majority of judges rejected her application for the material seized to be destroyed, meaning police could still use it as evidence against her.

This ruling only raises further questions. If the warrant is invalid, what is this evidence being used for? The charges are unclear, according to this court, but somehow the evidence of… whatever… is still valid and can be used to engage in an investigation, if not a prosecution?

For the moment, the AFP says it won't be looking at the evidence it took from Smethurst's home.

Australian Federal Police Commissioner Reece Kershaw said the evidence taken from Smethurst had been “quarantined” from the investigation for the moment.

“So what we’ll do carefully and correctly is take legal advice … on what we do with that particular material,” Kershaw told reporters. “Investigators are not able to look at that.”

That may be, but that statement doesn't say anything about any "looking at" that may have been occurred before court proceedings made it potentially unwise to keep sifting through possibly-tainted evidence.

With this still unsettled, this statement -- from the head of News Corp. -- seems a bit overconfident.

“The High Court ruling sends an indisputable message, that the Federal Police must obey the law and that their raid on Annika Smethurst’s home was illegal,” Miller said in a statement. “Annika Smethurst should not be prosecuted for simply doing her job as a journalist to rightly inform Australians on serious matters of public interest.”

Michael Miller is right: Smethurst should not have been targeted -- much less raided -- for publishing leaked documents. The government's supposed allegiance to protecting free speech rights should have prevented a journalist from being the subject of a law enforcement investigation. But he's somewhat wrong about the message the court sent. It did say the warrant was invalid. But it refused to force the AFP to destroy the illegally obtained evidence. That's not an "indisputable message." That's a mess that still needs to be properly sorted out. All it really says is the AFP needs to be a bit more careful crafting warrants before disregarding the protections Australian journalists are supposed to have.

Filed Under: annika smethurst, australia, free press, free speech, journalism, leaks, raiding journalists, warrant
Companies: news corp

Censorship Kills: US Government's Focus On COVID-19 'Messaging' Over Actual Protection Did Real Damage

from the free-speech-saves-lives dept

We've been writing a lot about the need for real transparency in the midst of a pandemic. The lessons to be learned from Taiwan's transparency compared to China's censorship and speech stifling are important. Tragically, it has become abundantly clear that the US is following the path of China, not Taiwan.

We've already covered hospitals trying to silence doctors and nurses from revealing what's actually happening within their hospitals, Jared Kushner hiding his coronavirus task force efforts in a private email account, and the CDC's tragic media gag order for its staff, but it's looking much, much worse.

A bunch of stories came out on Wednesday that more or less show how hard the government is working towards silencing anyone "off message" within the administration. First came a NY Times report that head of the the HHS group working on a COVID-19 vaccine was dismissed from his job for daring to question Trump's weird infatuation with hydroxychloroquine as the "miracle cure" to COVID-19 (which studies now suggest actually may be killing more patients than it's saving). Dr. Rick Bright, who had been the director of the U.S. Biomedical Advanced Research and Development Authority, released quite a statement about what happened:

“I believe this transfer was in response to my insistence that the government invest the billions of dollars allocated by Congress to address the COVID-19 pandemic into safe and scientifically vetted solutions, and not in drugs, vaccines and other technologies that lack scientific merit. I am speaking out because to combat this deadly virus, science — not politics or cronyism — has to lead the way.

I have spent my entire career in vaccine development, in the government with CDC and BARDA and also in the biotechnology industry. My professional background has prepared me for a moment like this — to confront and defeat a deadly virus that threatens Americans and people around the globe. To this point, I have led the government’s efforts to invest in the best science available to combat the COVID-19 pandemic.

Unfortunately, this resulted in clashes with H.H.S. political leadership, including criticism for my proactive efforts to invest early into vaccines and supplies critical to saving American lives. I also resisted efforts to fund potentially dangerous drugs promoted by those with political connections. Specifically, and contrary to misguided directives, I limited the broad use of chloroquine and hydroxychloroquine, promoted by the administration as a panacea, but which clearly lack scientific merit.

While I am prepared to look at all options and to think ‘outside the box’ for effective treatments, I rightly resisted efforts to provide an unproven drug on demand to the American public. I insisted that these drugs be provided only to hospitalized patients with confirmed COVID-19 while under the supervision of a physician.

These drugs have potentially serious risks associated with them, including increased mortality observed in some recent studies in patients with COVID-19.

Sidelining me in the middle of this pandemic and placing politics and cronyism ahead of science puts lives at risk and stunts national efforts to safely and effectively address this urgent public health crisis.

I will request that the inspector general of the Department of Health and Human Services investigate the manner in which this administration has politicized the work of BARDA and has pressured me and other conscientious scientists to fund companies with political connections and efforts that lack scientific merit.

Rushing blindly towards unproven drugs can be disastrous and result in countless more deaths. Science, in service to the health and safety of the American people, must always trump politics.”

But, that's not all. Around the same time that story came out, the Wall Street Journal reported that the administration wanted to fire Nancy Messonnier, the CDC official who had spoken out in February about the likelihood of COVID-19 becoming a global pandemic. Rather than heeding her words, they wanted to fire her (and did appear to gag her from speaking to the media).

On Feb. 25, Nancy Messonnier, a CDC official, said the agency was preparing for a potential pandemic and that community spread of the virus was likely. The stock market plunged.

At a media briefing later that day, Mr. Azar sought to quell concerns, saying the virus was “contained.”

But it was too late. A furious Mr. Trump, flying back to Washington from India, called Mr. Azar and threatened to oust Dr. Messonnier.

The next day, the president announced he was putting Vice President Pence in charge of the federal response—news Mr. Azar learned a few hours before the announcement.

And then, soon after those reports came out, in his daily political rally press conference, the President hauled out CDC director, Robert Redfield, asking him say that the Washington Post misquoted him in its story warning that a second wave of COVID-19 infections could be even more problematic, as it could be timed to coincide with next winter's flu season. Here's what the Washington Post said:

“There’s a possibility that the assault of the virus on our nation next winter will actually be even more difficult than the one we just went through,” CDC Director Robert Redfield said in an interview with The Washington Post. “And when I’ve said this to others, they kind of put their head back, they don’t understand what I mean.”

“We’re going to have the flu epidemic and the coronavirus epidemic at the same time,” he said.

Trump claimed that Redfield was "totally misquoted" saying that he spoke to Redfield and that Redfield told him "it was ridiculous.":

“I do want to mention, Dr. Robert Redfield was totally misquoted in the media about the fall season and the virus. Totally misquoted. I spoke to him and he said it was ridiculous,” the president said during the daily Coronavirus Task Force briefing at the White House.

“He was talking about the flu and coronavirus coming together at the same time, and we will knock it out. We’ll knock it out fast. That’s what he was referring to, coming together at the same time,” Trump continued.

“I would ask Dr. Redfield to straighten out. He didn’t say it was a big explosion. The headline in the Washington Post was ridiculous, which is, as I say, ‘fake news’ and CNN is fake news, which they knew.”

Except that he then called Redfield up to the podium... and he noted that he had been quoted accurately, but did want to "clarify" his quotes:

"The issue I was talking about being more difficult is that we're going to have two viruses circulating at the same time. This spring we had a benefit of having the flu season ending so we could use all our flu surveillance systems to say this is coronavirus, we need to focus. Next fall and winter, we are going to have two viruses circulating and we are going to have to distinguish between which is flu and which is coronavirus. And so the comment that I made — it's more difficult. It doesn't mean it's impossible, it doesn't mean it's going to be worse. It just means it's more difficult because we have to distinguish between the two."

Which is what the Washington Post article said. Some have argued that Redfield and Trump's complaints are about the Washington Post's headline, which claimed: "CDC director warns second wave of coronavirus is likely to be even more devastating" and it appears they're taking issue with the use of the word "devastating." But that seems to be a perfectly reasonable word to sum up what Redfield is saying. Indeed, as many people noted, before Trump threw this little temper tantrum, Redfield himself had retweeted the Washington Post article approvingly, saying nothing about the headline:

So, yet again, all of these stories suggest a similar theme: the President and the administration are -- like the Chinese government -- heavily focused on controlling the message, and making things look rosier than they really are, and not accurately telling the public and the press what is going on. And, once again, that's a very real life or death situation. In times of crisis like this, leadership is the ability to tell the truth, no matter how bad, and put forth a plan of action to deal with the situation and to chart the best path forward while acknowledging the challenges. That's not what this administration is doing. It's trying to silence dissent, and look for any silly scrap of "positive spin" it can find.

And people are dying because of it.

Filed Under: cdc, china, covid-19, donald trump, free speech, hhs, messaging, nancy messonnier, rick bright, robert redfield, silencing, transparency, us

Chinese Embassy Gets Briefly Suspended From Twitter; Insists 'Free Speech Must Be Honored' On Platform Banned Across China

from the want-to-try-that-again? dept

Content moderation at scale is impossible to do well. By now we've established that pretty firmly. However, there's something deeply amusing to see that when the Chinese embassy in Sri Lanka was temporarily banned from Twitter over what Twitter later claimed was a "systematic mistake," that the embassy then chose to go on a little righteous rant about free speech needing to be honored.

The Embassy put out a press release more or less saying the same thing:

On 13th April, Twitter suspended the official account of the Chinese Embassy in Sri Lanka (@ChinaEmbSL), without informing any specific reason. The Embassy made solemn representation to Twitter twice, requesting the latter to clarify and correct their decision, to avoid any misunderstanding and random association in the public. In the early morning of 14th April, Twitter officially replied the Embassy for a "systematic mistake", apologized and unsuspended the Embassy's account.

The Embassy feels regretful to this "systematic mistake", and would like to reiterate that the "Freedom of Speech" must be honored, while not be misused to spread groundless, racial or hatred speech, nor be treated with "Double Standards".

At first I thought that the "regretful" feelings indicated an admission that the "systematic mistake" was on the part of the embassy, but it appears that the embassy means Twitter itself. As for the whole "freedom of speech must be honored bit," someone should remind the embassy that Twitter itself is banned throughout China.

However, if I'm reading this correctly, the Embassy is indicating to Twitter that if it merely makes "solemn representations" to the Chinese government, requesting that it "clarify and correct their decision to avoid any misunderstanding and random association in the public," why surely the Chinese government will end the ban on Twitter. Right?

Filed Under: bans, china, embassy, free speech, social media, sri lanka
Companies: twitter

Disgraced Former NASCAR Boss, Brian France, Uses SLAPP Suit To Silence Parody Twitter Account

from the well,-that'll-solve-your-problems dept

Brian Z. France ran NASCAR for many years, though as a pretty obvious nepotism hire. His grandfather and father ran NASCAR before him. In 2018, France was arrest for driving while intoxicated and criminal possession of a controlled substance, causing him to take an "indefinite leave of absence," that became more permanent once he pleaded guilty to the DWI, and has an agreement that if he completes 100 hours of community service and doesn't get into any more legal trouble, the misdemeanor charges will be reduced to a "non-criminal infraction" later this year. France's time at the head of NASCAR came with some controversy regarding his leadership style -- so it was not that surprising that someone set up a parody Twitter account for him @DrunkBrianF.

France apparently didn't take kindly to being parodied, and hired some muckety muck lawyers -- Daniel Cohen, Kiran Mehta, and William Farley, from Troutman Sanders -- to file a blatantly obvious SLAPP suit in Connecticut Superior Court at the end of February, against John L. Steele, who apparently ran the account, going back to February of 2014. The lawsuit is, to put it mildly, ridiculous. It acts as if the concept of parody does not exist. Indeed, it insists that the intent of the @DrunkFBrianF account was to trick people into thinking it was really Brian France tweeting:

Since establishing the account in February 2014, the pattern of Steele’s conduct through @drunkbrianf makes clear the purpose and intent of maintaining the Twitter account: to harass, demean, abuse, belittle, and disparage Plaintiff while impersonating Plaintiff in a manner that is intended – and in fact does – mislead, confuse, and deceive others to believe that Plaintiff is responsible for the content and activity of @drunkbrianf.

Who the hell is going to look at an account that is literally called "Drunken Brian France" and assume that it's actually Brian France, and not a parody? The argument the lawsuit makes is that because the obviously parody account refers to Brian France in the first person it means he's trying to confuse people into believing it's really Brian France behind the posts, even though the multiple examples in the lawsuit are so blatantly parody, in that each one of them is designed to mock Brian France. Just a few examples directly from the filing:

The lawsuit acts all pearl-clutchy about the use of the 1st person. But that's how parody works, guys. You do an exaggerated and obviously buffoonish version. No one is thinking that the real Brian France would post this stuff. But, nope, France's lawyers insist:

These tweets and photographs, among others, reflect Steele’s ongoing efforts to deceive others to believe Plaintiff is responsible for the Twitter account and the account’s content.

Have these three lawyers literally never encountered parody in their entire lives? The complaint tries to argue that people are actually fooled by this, but they really only point to one single person, who seems generally confused, saying that if this is the real Brian France, they should stop tweeting like this. The second "example" Tweet is a DM exchange of someone just asking if he's really an alcoholic, and doesn't indicate one way or another if the person actually thinks it's Brian France. The third example is literally someone who is just against alcoholism in general, and asks the parody account to "drop the Drunken before your given name" because "alcoholism is a disease." That exchange doesn't even seem to know who Brian France is in the first place.

Either way, if parody fools some very, very foolish and gullible people -- such as the apparently ridiculously naive lawyers at Troutman Sanders -- it's still protected speech. But a lawsuit is a lawsuit, and this one claimed that the parody Twitter account engaged in "invasion of privacy" and "intentional infliction of emotional distress."

Even tough Connecticut has a decent anti-SLAPP law, a lawsuit is still an expensive and time consuming endeavor -- especially in the midst of a pandemic. The most recent filing in the case noted that the parties were "engaged in settlement discussions, and soon after the parody account tweeted and pinned a "statement" that certainly appears to be associated with the settlement:

Brian France was not and never has been associated, affiliated or in any way involved with this Twitter account or any of the content generated and/or posted by it. I will be permanently deactivating and deleting this account. I understand this account harmed Brian France and his family in ways never intended, and for that I am sorry.

And, to be clear: that's a bullshit resolution, but it shows how rich, powerful people abuse the courts with SLAPP suits to silence people, and they get help from law firms like Troutman Sanders in doing so.

Of course, if Brian France and his lawyers think they have a "victory" on their hands, they may find it to be a short-lived one.

Filed Under: 1st amendment, brian france, connecticut, drunk brian france, free speech, parody, slapp
Companies: nascar

Texas Attorney General's Office Says It Can Toss People In Jail For Suggesting Coronavirus Fears Are A Legit Reason To Vote From Home

from the do-you-want-the-virus-or-jail-time-(which-also-has-the-virus) dept

Just when we need our elected representatives to step up and get their collective shit together, they seem to be disintegrating as quickly as possible. I understand a pandemic isn't on the list of "Things I Expected To Deal With During My Tenure," but this is why we give them so much power and the trust that's implicitly packaged with it.

Not every decision made or mandate handed down needs to be solid gold. But it needs to be much better than what we're getting, which often seems to have been generated by a "COVID response" dartboard filled with ideas that shouldn't have made it past a cursory room read.

Here's the thing about voting: it's important. And it needs to be secure. And, yes, we need to limit voter fraud but that shouldn't be the overriding concern since there's been so little of it observed during the numerous elections we've held in this nation.

Sending voters out to gather in groups at polling places may cut down on fraud and (depending on the vote-taking tech) make things a bit more secure than relying on mail-in votes, but you have to factor in the exposure to a deadly virus -- both for voters and those forced to staff these disease vectors of attack.

The lawyers speaking for the Texas Attorney General's office have issued one of the most tone deaf responses to worried state residents wondering if it might be OK to vote from home this year, given the spread of the virus. (h/t Sam Levine)

The letter [PDF] starts off officially and non-stupidly enough by explaining the letter of the law does not support treating attempts to avoid infection as equivalent to established definitions of disability.

We conclude that, based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail.

Fair enough, but given the extraordinary circumstances presented by COVID-19, perhaps the state could relax the definition to keep state residents safe during the upcoming election?

LOL no. That's not what's going to happen. According to the state's counsel, it's far more likely people are going to be treated as criminals for telling others to stay COVID-free by using a mail-in ballot.

Finally, to the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041. TEX. ELEC. CODE § 84.0041 (providing that a person commits an offense if the person "intentionally causes false information to be provided on an application for ballot by mail"); see also id. § 276.013 (providing that a person commits election fraud if the person knowingly or intentionally causes a ballot to be obtained under false pretenses, or a misleading statement to be provided on an application for ballot by mail).

So, these are your options: tell people to vote in person and risk contracting the virus. Or advise them to dodge the virus by voting from home and go to jail... where you'll risk contracting the virus.

An offense under this section is a state jail felony.

And a state jail felony can net someone anywhere from six months to two years in jail, along with a fine of up to $10,000.

The state's top prosecutor then tries to blunt this threat with a half-assed promise to engage in some prosecutorial discretion.

However, whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.

Roll the dice, I guess. The state's counsel signs off by noting this is "not the official opinion" of the AG's office, which further adds to the mess being made by this response to a legitimate question. All we know for sure is dodging the corona is not a legal reason to vote by mail, and it may or may not result in criminal charges and jail time if you're telling people it's something they can try. Hopefully, this will be clarified in the near future. And hopefully that clarification will recognize the health risks the state is asking voters to take by threatening to jail them for encouraging voting by mail.

Filed Under: absentee ballots, covid-19, criminal, elections, texas, vote-by-mail, voting

The Geopolitical Streisand Effect: The More China And The WHO Try To Silence Taiwan, The More Attention Its Success Fighting COVID-19 Gets

from the streisanding-taiwan dept

Last week, a full page advertisement appeared in the NY Times, that was crowdfunded by nearly 27,000 people (mostly from Taiwan), with the provocative line: "WHO can help? Taiwan." Taiwan's President Tsai Ing-wen posted a picture to her Facebook page:

The story behind the ad and the companion TaiwanCanHelp.US website is quite fascinating in its own right, and is reflective of the impressive digitally-aware political movement that has really grown up in Taiwan over the last decade. If you're unaware, over the last five years or so, Taiwan has been perhaps the most interesting experiment to watch in using technology to build more effective participatory government, pushed forward by a bunch of open source/open government activists who realized that working towards real solutions rather than pure partisan rancor, was a good way forward. And that shows in how this new campaign came about.

Much of it was designed in response to the WHO's continued efforts to box Taiwan out of the COVID-19 conversation, even as Taiwan seemed to be one of a very small number of countries which appeared to be dealing with the onslaught of COVID-19 quite well (and this was despite its closeness to China, and many people regularly travelling back and forth between Taiwan and China). The WHO's efforts to ignore Taiwan went really viral in late March when a major news program in Hong Kong, RTHK, interviewing Assistant Director-General at WHO Bruce Aylward, showed Aylward's ridiculously awkward attempts to avoid responding to questions about Taiwan:

The reporter asks whether or not the WHO would reconsider Taiwan's membership. Because Taiwan is not a member of the UN (because China still insists it's a "rogue province" rather than an independent country), it is not a member of the WHO and has to petition to attend meetings -- which is sometimes allowed, but frequently denied. Aylward first stares in silence, and then when asked again says he couldn't hear the question. She tries to ask again and he says "no, that's okay, let's move to another question." But the reporter asks again, and suddenly the Skype session "disconnects" (though you see Aylward move a bit right before the disconnect happens). The reporter calls him again, and this time instead of asking about WHO membership, just asks about how Taiwan has done regarding containing COVID-19. Aylward then gives a cringe-worthy response obviously trying not to respond to the actual question:

Well, we've already talked about China. And, you know, when you look across all the different areas of China, they've actually all done quite a good job.

And then he quickly ends the interview. But of course, much of China has not done a very good job at all, while Taiwan, which (contrary to what the Chinese will claim) is not a part of China has done a very good job. And that's kind of important. To make matters worse, the news station that aired the interview was reprimanded by Hong Kong officials which, of course drew even more attention to not just the interview, but the overall situation.

As a recent piece by Thomas Shattuck at the Foreign Policy Research Institute notes, this kicked off a Streisand Effect for Taiwan's successful handling of the pandemic, bringing a ton of new attention on the country.

The video interview went viral because it showed the embarrassing lengths that the WHO goes to in order to avoid offending China. Throughout the crisis, the WHO has been extremely laudatory of China’s response and transparency to the virus outbreak—despite obvious early cover-ups.

Even though Beijing has tried to erase Taiwan from the COVID-19 conversation, the world is paying attention. Bill Gates, when interviewed on Fox News, pointed to Taiwan’s early testing and extensive procedures, and explained that because of testing, it will not experience as much of an economic hit as other countries. American politicians from both sides of the aisle also highlight Taiwan as a country to emulate. European politicians have joined the call for Taiwan’s inclusion in the WHO. Googling Taiwan brings up positive search results.

No matter how much China seeks to push Taiwan down, Taiwan continues to show its resilience. It has not been erased.

Amusingly, Shattuck also highlights that Barbra Streisand herself weighed in with support for Taiwan's response to COVID-19, bringing it all full-circle.

After this all went viral, the director of the WHO, Dr. Tedros Adhanom Ghebreyesus, made things much worse by accusing Taiwan of being behind racist attacks and death threats directed at himself... which did not go over well at all. The big NY Times ad actually began as a response to Dr. Tedros' weird attack on Taiwan, but those behind it quickly realized that simply responding angrily to a weird national ad hominem attack would likely escalate things, rather than trying to approach the campaign by highlighting not just the successful results in Taiwan, but also how Taiwan can help others survive the pandemic:

“We only wanted to respond to Dr. Tedros’s false accusations when we released our first draft of the public letter, but as everyone could see a few days ago, we had a lot to improve upon,” Du wrote in an online forum today reflecting on the publication process.

The organizers eventually rewrote the draft to reflect what Taiwan has always promoted, using “Taiwan can help” to signal empathy for victims of the crisis.

“In the end, we realized we don’t have to play tit for tat with Tedros. We should rise above it and just reiterate #TaiwanCanHelp properly,” Du wrote.

And, to some extent, this goes back to what I noted up top about Taiwan's embrace of openness and transparency (often via the internet). Indeed, the TaiwanCanHelp website discusses information sharing and open data that Taiwan is willing to share:

In the end, the WHO's terrible attempt to ignore Taiwan has, as Shattuck noted, only called much more attention to Taiwan and its efforts. The country's President has recently written a column for Time Magazine explaining how Taiwan handled COVID-19 and the Washington Post recently stated what should be obvious by now, that everyone -- especially China and the WHO -- need to get over their politicking over the sovereignty of Taiwan and let the country join the WHO, because saving lives right now is a hell of a lot more important than continuing this silly political charade.

Today, Taiwan’s contribution to the fight against covid-19 has been publicly recognized by Ursula von der Leyen, the president of the European Commission, and Shinzo Abe, prime minister of Japan. State Department officials have conducted high-level virtual briefings with Taiwanese epidemiologists and government officials. U.S. officials have praised Taiwan for sending millions of masks to the United States. But, true to form, China has reacted in typically small-minded and aggressive manner, accusing Taiwan of engaging in “mask diplomacy” and seeking to profit from the pandemic to push its independence agenda.

As that article notes, if China wants to continue its silly politicking there's at least another fig leaf it can put over this situation to make it more bearable -- and it has done so in the past:

Beijing won’t be happy, but there is a model for this. In 2001, China entered the World Trade Organization. Literally five minutes after Beijing’s formal accession to the trading body, Taiwan was allowed in under the name “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei).” Taiwan won entry to the WTO because of pressure by the United States and other major trading nations, which told Beijing not to mess around. The global trading system was considered too important to let it be held hostage by Beijing.

I think a strong case can be made that global health in the midst of a pandemic is more important than "global trading systems." As Shattuck notes, for now, Taiwan needs to separately apply to attend each and every WHO meeting, and its requests are frequently denied:

Despite its stellar response and goodwill campaign, Taiwan has been curtailed by the WHO. The WHO has claimed that it is working with Taiwan and its government, but that is not really the case. According Legislator Wang Ting-yu, Taiwan applied to attend 187 WHO technical meetings between 2009 and 2019, but only was allowed to attend 57. Since Taiwan is not a member of the United Nations, it is not granted permission to attend every meeting—it must ask permission to attend as a guest/observer, which means that China must give the WHO, other any other UN-affiliated organization, its blessing to allow Taiwan’s presence. Most importantly, Taiwan was the first country to ask the WHO whether or not the virus could be transmitted human-to-human on December 31. The WHO ignored Taiwan’s question. On January 12 (the day after Taiwan’s presidential election), the WHO said that there was no clear evidence, and then on January 20, China confirmed human-to-human transmission—almost one month after Taiwan first brought up the very important question.

That issue with that initial email in December has also turned into yet another sort of Streisanding. The WHO came out last week denying that it ignored Taiwan's email and claiming that the email did not indicate human-to-human transmission of the disease. Except that the Taiwanese government responded and had receipts in the form of the email it sent:

While the email does not explicitly state person-to-person transmission, the very fact that they told the WHO that these individuals were being isolated clearly was an indication that they were concerned about person-to-person transmission. More importantly, as the Taiwanese government points out, part of its early success in stopping a massive outbreak was merely assuming that it was likely there was person-to-person transmission -- something the WHO didn't admit for almost another month:

Even though Taiwan strongly suspected that human-to-human transmission of the disease was already occurring at the time, we were unable to gain confirmation through existing channels. Therefore, on the day the aforementioned email was sent to WHO, the Taiwan government activated enhanced border control and quarantine measures based on the assumption that human-to-human transmission was in fact occurring. These measures included screening passengers on flights from Wuhan prior to disembarkation.

We've talked a lot about the problems of general Chinese censorship in the time of COVID, but it's been incredible to watch this moment of geopolitical Streisanding in which the efforts by the Chinese and the WHO to stick their collective heads in the sand over Taiwan is only serving to highlight the details of Taiwan's success even more.

Filed Under: attention, censorship, china, covid-19, openness, streisand effect, taiwan, transparency, who

Facebook Tells Court Laura Loomer's Defamation Allegations All Target Protected Opinions

from the speech-has-consequences,-Ms.-Free-Speech-Warrior dept

Last summer, alt-right "journalist" and no-scare-quotes buffoon Laura Loomer sued Facebook for uninviting her from its platform. According to her lawyer, the equally-buffoonish Larry Klayman, it was defamatory for Facebook to boot Loomer from the platform by designating her a "dangerous individual."

According to Loomer, her removal from Facebook entitles her to 5% of Facebook's net worth: roughly about $3 billion at the time of the suit's filing. Loomer sued in Florida but will now have to continue her lawsuit in California, where Facebook is actually located. And Facebook has fired back in its own filing, pointing out that designating users as "dangerous individuals" and performing other moderation activities is not only protected by Section 230 of the CDA, but by the First Amendment as well.

Facebook's motion to dismiss [PDF] says that decisions to label people as "dangerous individuals" is an expression of Facebook's opinion of that person and their posts -- something clearly protected by the First Amendment.

To the extent she alleges Facebook called her “dangerous” by removing her accounts pursuant to its DIO policy and describing its policy generally in the press, the law is clear that calling someone “dangerous”—or saying that she “promoted” or “engaged” in “hate”—is a protected statement of opinion. Even if it were not, Ms. Loomer cannot possibly meet her burden to prove that it would be objectively false to describe her as “dangerous” or promoting or engaging in “hate” given her widely reported controversial public statements. To the extent Ms. Loomer is claiming, in the guise of a claim for “defamation by implication,” that Facebook branded her a “terrorist” or accused her of conduct that would also violate the DIO policy, Ms. Loomer offers no basis to suggest (as she must) that Facebook ever intended or endorsed that implication.

Facebook states that Loomer was welcome to participate in the discovery process to find something that indicated the platform acted in bad faith by labeling her "dangerous." But she chose not to. And even if she had, it's unlikely she would have uncovered the defamation smoking gun she needs to continue suing Facebook.

At this stage, Ms. Loomer can no longer rely on the threadbare allegations in her complaint. Having failed to conduct discovery, there is no record evidence to suggest that Facebook subjectively knew she was not “dangerous” and/or did not “promote … hate.”

And, Facebook notes, we're not the only platform that believes Loomer is a net loss for third-party content providers, if not humanity itself.

Nor could she ever make this showing: given Ms. Loomer’s public statements and actions, and the fact that most major platforms have banned her for violating their policies, this is clearly an issue where, at a minimum, reasonable minds can disagree.

While Loomer has decided it's wise to continue a lawsuit without engaging in discovery, Facebook says there's plenty of evidence on the record -- including statements made by Loomer herself -- that her posts and actions violate the platform's terms of service, as well as those of other sites. The supposedly defamatory statements made by Facebook during its booting of Loomer are incapable of being proven false -- not when so much of Loomer's behavior makes them arguably true.

Facebook’s use of the phrases “dangerous” and “promotes hate” are “so debatable, loose and varying” in meaning that they are “insusceptible to proof of truth or falsity.” Ms. Loomer is, by her own admission, a controversial figure. She has called Islam a “cancer on society” and “cancer on humanity” and advocated laws prohibiting Muslims from serving in public office. She has advocated a “non Islamic form of [U]ber or [L]yft” so she doesn’t have to “support another Islamic immigrant driver.” She has described herself as a “#ProudIslamaphobe” and called Muslims “savages” on Twitter. And she has appeared with or expressed support for individuals who were previously banned by Facebook under its DIO policy for engaging in “organized hate.” While Ms. Loomer may not believe she is “dangerous” or has “promoted hate,” others disagree—as demonstrated by her admission that online platforms have widely banned her.

There's no way Loomer is going to win this lawsuit. But it probably doesn't matter much to Loomer and her lawyer. Klayman loves to handle performative lawsuits that do nothing for clients but allow them to preach to the converted using the federal court system as their pulpit. If that's all Klayman and his clients desire, even a loss can be considered a win. But a federal anti-SLAPP law would make these stunt lawsuits prohibitively expensive. And that's what this nation needs if we're going to rid ourselves of noisy nuisance lawsuits like these.

Filed Under: 1st amendment, content moderation, defamation, discovery, free speech, larry klayman, laura loomer, section 230
Companies: facebook

Iraq Joins China In Suppressing Journalism About COVID-19

from the this-is-bad dept

We've been screaming from the rooftops about the need for more transparency regarding COVID-19, and tragically so many governments are going in the opposite direction. The latest is Iraq, where the nation's media regulator revoked Reuters' "license" for three months while also fining the organization ~$21,000 for daring to claim that the number of confirmed COVID-19 cases was actually higher than the government was reporting. According to the Communications and Media Commission, this violated rules and would "have serious repercussions on societal health and safety."

Remember that we've been calling out various places -- including inside the United States -- that are saying that posting "fake news" about COVID-19 should be a criminal offense. This is what happens when you allow that kind of thinking. The arguments made by those who think they're stamping out "disinformation" are identical to those made by Iraq's media regulatory agency to silence accurate reporting.

At the very least, it appears that Iraq's President recognizes this is ridiculous and dangerous:

Asked about the Reuters suspension in an interview with Christiane Amanpour on CNN, Iraqi President Barham Salih said it was a “regrettable decision” taken by a commission which is independent of the government.

“From my vantage point you would not get me in a situation where I would defend that. I’m working with our legal team in order to revoke that and manage the situation,” Salih said.

Still, considering how many people are pushing for laws against or punishment for "fake news," please, please remember that it will absolutely be abused to stifle or chill legitimate, if confrontational, news reporting over government claims. And in a time when we need more transparency than ever, such crackdowns on reporting could mean many lives are literally put at risk.

Filed Under: covid-19, fake news, iraq, journalism

China's NBA Free Speech Debacle Turned Out To Be A Prelude To Its COVID-19 Denialism

from the free-speech-saves-lives dept

Since time is a concept with increasingly less meaning, you may have forgotten that it’s been only five months, not five years, since the NBA’s dustup with China over Houston Rockets GM Daryl Morey’s “Fight for freedom, stand with Hong Kong” tweet.

In response to that controversy, a number of business-conscious — to put it generously — major sports figures distanced themselves from Morey’s tweet. Some went so far as to suggest that it wasn’t their concern or responsibility to discuss human rights violations outside their own country.

At the time, these responses were clear examples of craven, self-serving statements from people who were more interested in preserving their investments than speaking honestly about human rights in a country in which they have major financial interests.

But given the current moment, it’s clear that they weren’t just wrong on the ethics of the situation. Because while there are many unknowns about COVID-19 — like when this nightmare will end — we do know this: China censored information about the outbreak, which helped accelerate its spread. Suddenly the chasm between American citizens and China’s silenced whistleblowers doesn’t seem so wide.

The Associated Press reported this week that China’s top leadership became aware that COVID-19 would likely be a pandemic in mid-January — and sat on that information for nearly a week. As early as December, China was censoring keywords about coronavirus on social media. Reporters Without Borders chronicled the impact China’s stranglehold on information had on the pandemic, from threatening doctors trying to warn the public to arresting whistleblowers for “false rumors.” Dr. Li Wenliang, who lost his life to coronavirus, has become a martyr in China, his experience a warning of both the seriousness of this pandemic and the cruelties of the Chinese government’s repression.

None of this absolves other governments of their failures to adequately respond to COVID-19. Every official, whether in China or the United States, is responsible for their own actions. But had China not censored vital information about a deadly pandemic and hid what it knew, its people could’ve been better prepared and slowed the spread of COVID-19. According to Zhong Nanshan, “one of China’s most highly regarded epidemiology experts and the leader of the National Health Commission’s task force on the epidemic,” if China had taken appropriate action early on, rather than obfuscate and censor, “the number of sick would have been greatly reduced.”

China’s citizens — and people across the globe — would have had more time to respond. Whether that time was or would have been utilized responsibly is another question.

Back in October, no one in the NBA could’ve known what awaited the world just a few short months later. But revisiting that debacle now casts into even sharper relief the disgrace of it all.

After Morey’s tweet, Golden State Warriors coach Steve Kerr stated: "None of us are perfect and we all have different issues that we have to get to and saying that is my right as an American...The world is a complex place and there's more gray than black and white." Suggesting Morey wasn’t “educated” on the situation, LeBron James warned that, even though we have freedom of speech, we should “be careful” about what we say.

And the NFL’s Jacksonville Jaguars owner Shad Khan said, “I want to have an opinion in America, there’s a civic duty to engage and do the right thing, but having an opinion on sovereign matters in other countries, it’s for those people to decide,” and concluded that “you have to respect the norms” of China. (Khan’s comments were particularly baffling given that many Chinese people have faced extreme consequences for “having an opinion on sovereign matters.”)

Shaquille O’Neal was one of the few to get it right. Shaq stressed the right to free speech, and added: “Whenever you see something wrong going on anywhere in the world, you should have the right to say ‘that’s not right,’ and that’s what [Morey] did.”

We should care about Uighur prison camps, forced disappearances, crackdowns in Hong Kong, suppression in Tibet, censorship of women’s rights activists, the Great Firewall, and mass surveillance simply because caring about human suffering is the right thing to do, regardless of its proximity to us.

But if basic morality doesn’t persuade us, maybe our current situation will. Censorship in China may seem like a faraway problem, but its effects will be felt globally for a long time to come. If that doesn’t convince us to care, it’s not clear what will.

Sarah McLaughlin is Director of Targeted Advocacy at the Foundation for Individual Rights in Education. The views expressed here are her own.

Filed Under: basketball, censorship, china, covid-19, free speech
Companies: nba

Court Tells Pro-Trump 12-Year-Old That Calling Him A Defender Of Racism And Sexual Assault Is Protected Speech

from the that's-how-speech-works,-snowflake dept

For a group prone to calling others "snowflakes," they sure seem to get their feelings hurt pretty quickly. Fans of President Trump have filed a lot of defamation lawsuits, litigiously angry they've been called things because of things they've done. This includes notable fans of Trump, such as... President Trump himself, as well as his campaign.

One of the youngest Trump fans sued Newsweek over a piece covering the 12-year-old boy (who is referred to only as "C.M." in the lawsuit) and his MAGA-related antics. The Newsweek article discussed the minor's pro-Trump videos, made more popular by local coverage in C.M.'s hometown. Here's how C.M. turned from precocious pre-teen to a limited purpose public figure. From the Third Circuit Appeals Court decision [PDF]:

During the 2016 presidential campaign, C.M. got a lot of attention. Before he had even turned twelve, he had publicly endorsed now-President Donald Trump and released videos seen by thousands. In one popular clip, C.M. called Hillary Clinton “deplorable.” That video went viral, attracting more than 325,000 views on Facebook alone. From Russian television stations to Philadelphia magazine, many wanted to hear from “Philly’s Biggest Trump Supporter.”

C.M. obliged. In an interview with Philadelphia magazine, he said: “Madonna needs to leave the country. That would help make America great again. She’s trash. She said she wanted to blow up the White House.” After being asked why his Facebook posts use “the same kind of vitriol” that C.M. had said “is tearing this country apart,” he explained: “Look, it’s just a joke. They’re calling Donald Trump a psychopath. They say he’s mentally unfit. They’re demonizing the Republican Party. They’re saying most Republicans are racist. The people I talk about in these posts really have it coming to them.”

Newsweek's article discussed C.M. and another 12-year-old Trump fan, M.M. It mentioned M.M.'s interview with alleged jailbait enthusiast Judge Roy Moore. It discussed C.M.'s appearance on Infowars, where he referred to Megyn Kelly's "hotness" and said things about "globalists."

What C.M. sued over was this summary of C.M. and M.M.'s media appearances.

“These kids are being weaponized,” says Todd Gitlin, professor of journalism and sociology at Columbia University. He says the [M.M.] and [C.M.] interviews “camouflage” positions of the hard right “as feel-good sweetness and light, when, in fact, they are defending raw racism and sexual abuse.”

The Newsweek article -- with C.M. and M.M.'s names and faces redacted -- is attached to the ruling. There's nothing in it approaching actionable, but here we are, one level up in the federal court system, listening to an Appeals Court (re)state the obvious. This isn't defamation. This is protected speech.

At the heart of this appeal is the first pair of quotations from Professor Gitlin, at the end of the article’s second paragraph: “These kids are being weaponized” and “they are defending raw racism and sexual abuse.” Those characterizations follow the article’s factual description of M.M.’s interviews with Roy Moore and Jennifer Lawrence, vice president of the America First Project, and C.M.’s interview with Infowars’s Alex Jones. Only after describing those interviews does the article offer Gitlin’s opinion that “[t]hese kids are being weaponized” and that the “hard right” is using their interviews to “camouflage ... defending raw racism and sexual abuse.”

But those characterizations make no factual claims about C.M. The article does not say that C.M. is a racist or sexual abuser. Nor does it accuse C.M. of having made any specific statements defending “raw racism and sexual abuse.” Instead, it quotes Gitlin’s opinion about how the “hard right” is using C.M.’s and M.M.’s opinions. His opinions may seem harsh, but that does not strip them of their absolute privilege.

The court points out any other reading of defamation law would be ridiculous. Speech has consequences -- even protected speech. If the minors didn't want someone to suggest they "defend raw racism and sexual abuse," perhaps they shouldn't have been out in public defending people accused of raw racism and sexual abuse.

While saying that someone committed a crime may be defamatory, publicly defending those accused of racism or sexual abuse is not unlawful. We see no evidence that Pennsylvania would let defenders of those accused of bigotry or crime bring defamation actions whenever a publication mentions their defense.

C.M.'s status as a minor has no effect on this lawsuit. C.M. made himself at least a limited-purpose public figure by agreeing to do an interview with a local magazine. It was this interview -- along with C.M.'s interview with Alex Jones -- that turned him into a public figure. The bar is higher for public figures, who have to prove actual malice: that Newsweek knew it was publishing false information with a reckless disregard for the truth. Since this case deals with protected opinions, there's nothing in there for C.M., no matter how much his complaint flails around searching for something actionable.

C.M. cites three pieces of circumstantial evidence. First, he argues that Newsweek “grossly departed from professional journalistic standards” by not asking C.M. or his parents to comment for the article. Second, he charges that Newsweek must have done so to improve its “declining and anemic sales and online hits.” Third, he stresses that Newsweek put a large photo of C.M. at the top of the article. Even taken together, these facts fall well short of actual malice.

Not asking someone for comment is not defamation. It never has been. The lower court said that even an "extreme departure" from journalistic standards would not rise to the level of defamation and the Appeals Court agrees. That Newsweek sought to profit from the publication of the article doesn't change the math. Newsweek would like everything it publishes to help it turn a profit, not just articles about pre-teen Trump fans. And the accusation about the photo makes the least sense. Here's the court's response to that claim:

The photo shows an energetic C.M. holding up a 2016 Trump campaign sign. That is all.

The court sums it all up by reminding the minor he entered the political arena. Newsweek didn't drag him into it. If he enjoys the freedom to say things about Trump's political opponents, Newsweek enjoys the freedom to report on his pro-Trump efforts as well as draw inferences from his actions.

In the rough-and-tumble of politics, C.M. must endure offensive opinions and heated rhetoric. The First Amendment protects even the most derogatory opinions, because suppressing them would chill robust political discourse. As long as an opinion relies on disclosed facts, it is privileged. That is what happened here. And C.M. did not plead that Newsweek knew the facts were false or recklessly disregarded the truth. We will thus affirm.

If C.M. wants to continue making a federal case of it, he's welcome to appeal this decision one more time. But even if the Supreme Court leans more right than left these days, there's no way it's going to start calling protected opinions defamation. This was a waste of everyone's time, but mostly Newsweek's. And that may have been the point. A lot of these losing lawsuits are mostly demonstrative -- ones that allow the plaintiffs to waste their targets' time and money while making themselves out to be martyrs for the conservative cause. A federal anti-SLAPP law would go a long way towards discouraging these buffoonish lawsuits. Once it's the plaintiffs' money on the line, there's going to be a lot less litigious showboating.

Filed Under: 1st amendment, anti-slapp, c.m., defamation, donald trump, free speech, public figures, slapp