Dealing With COVID-19 Requires Radical Transparency In Research Results; China Is Going In The Opposite Direction

from the dangerous-games dept

History has shown that important, innovative breakthroughs come from transparency, collaboration, and information sharing. Dealing with the COVID-19 pandemic is going to require that -- but tragically it appears that China is going in the opposite direction. The government there is now requiring "extra vetting" by the government before research regarding COVID-19 can be published. Indeed, some preliminary research has already been removed from the internet:

Under the new policy, all academic papers on Covid-19 will be subject to extra vetting before being submitted for publication. Studies on the origin of the virus will receive extra scrutiny and must be approved by central government officials, according to the now-deleted posts.

A medical expert in Hong Kong who collaborated with mainland researchers to publish a clinical analysis of Covid-19 cases in an international medical journal said his work did not undergo such vetting in February.

As the report notes, this all appears to be an effort to "control the narrative" especially regarding what now appears to be many early missteps by the Chinese government in dealing with the pandemic. I can completely understand why the government doesn't want those mistakes to get too much scrutiny, but at some point you have to ask what's more important: saving lives and preventing these kinds of errors in the future... or making sure you don't look as bad as you probably should. It's tragic that multiple world leaders today seem a lot more focused on the latter, rather than the former.

Filed Under: china, covid-19, research

Puerto Rico Decides The 1st Amendment Doesn't Apply To Its Citizens; Criminalizes 'Fake News'

from the bad-PR-for-PR dept

Puerto Rico is a US territory and its citizens have been citizens of the United States since 1917. A little more than one hundred years later, the local government has decided the rights granted to Puerto Ricans by the US Constitution aren't really rights -- not in the middle of a pandemic.

The government is already receiving criticism (and at least one lawsuit) for its COVID-related crackdowns, which include quarantine and curfew orders that appear to violate Constitutional rights. Now, the government has added onto its Public Security law to criminalize certain kinds of speech. Here's the Committee to Protect Journalists on the island's "fake news" law. (h/t Sarah McLaughlin)

Puerto Rico Governor Wanda Vázquez signed an amendment to the island’s Public Security law on April 6 making it illegal for media outlets or social media accounts “to transmit or allow the transmission” of “false information” relating to government proclamations or executive orders concerning COVID-19 or other disasters, according to the order and news reports.

The government will apparently be the final arbiter on the truthiness of transmitted information. The law's wording covers a lot of ground -- and a lot of protected speech.

[I]t makes it illegal for media outlets or social media accounts “to transmit or allow the transmission” of “false information with the intention of creating confusion, panic, or public hysteria, with regards to any proclamation or executive order declaring an emergency, disaster or curfew.”

Yeah, that could cover a lot of things. Causing confusion is almost a given, even in official government proclamations. If someone's "fake news" mamanges to cause more than $10,000 in damage to "public-sector finances" (pretty easy to do at government rates) or leads to the "damage or injury of physical property," the previously-protected speech will be considered a fourth-degree criminal offense. That makes it a low-level felony, punishable by six months in jail and fines of up to $5,000.

As the CPJ notes, this doesn't just violate the Constitution, it makes it more difficult for journalists to cover the pandemic as it unfolds. A lack of solid information isn't the same thing as misinformation, but criminalizing speech the government feels is inaccurate (and costs money to respond to) is only going to result in less information being spread. "Fake news" laws tend to do collateral damage to non-fake news reporting as reporters in the middle of unfolding events opt to self-censor, rather than run the risk of being prosecuted. This won't withstand a Constitutional challenge, but until the law is blocked, everyone in Puerto Rico will have to make do with a little less First Amendment.

Filed Under: 1st amendment, fake news, free speech, puerto rico

Chinese Government Bans 'Animal Crossing' After Hong Kong Gamers Stage Protests Inside The Game

from the always-a-step-ahead dept

China loves to censor. And residents of the country -- as well as those in Hong Kong who are now seeing China encroach on their democracy -- love to dodge the censors. It's a game that's been played for years, but one that has become increasingly sophisticated with the erection of China's Great Firewall.

For years, Chinese citizens have been using pictures of Winnie-the-Pooh as visual shorthand for President Xi Jinping. President Xi is not flattered by the comparison. His unhappiness with this portrayal has accelerated the meme's spread -- as has the government's attempts to rein it in. And that's how something as innocuous as A.A. Milne's creation has made its way to the top of the Most Censored list.

But it's more than some light mockery of the country's president. The recent protests in Hong Kong have been met with increased censorship by the Chinese government. Added to the ongoing memory-holing of 1989's Tiananmen Square Massacre were duties related to a new wave of protests -- and the government's sometimes-violent responses.

The more the government tries to censor, the more citizens find ways to route around it. Chinese citizens have been very creative, using a number of image-alteration tricks to trick the government's algorithms, as well as some clever wordplay that turns innocuous phrases into condemnations of government officials and efforts.

When the censorship algorithms fail, the government just starts blocking platforms completely and terminating communication services. Apps vanish from online stores, often with the assistance of US tech companies that don't want to anger the government presiding over one of the largest user bases in the world.

But government critics always find a way. David Gilbert reports for Motherboard that Hong Kong gamers are using coronavirus lockdown favorite "Animal Crossing" to protest Chinese government interference and spread banned images.

Joshua Wong, a Hong Kong democracy activist, was among the first to show how this could be done, posting a screenshot of his island, which he decorated with a banner saying: “Free Hong Kong, revolution now.”

“For lots of people around the world who play this game, they have to put their ideal life into the game, and for Hong Kongers, we have to put our protest movement and our protest sites inside the game,” Wong said last week.

Wong's Twitter thread is full of in-game protest efforts -- both his and the efforts of those responding to his tweet. It's yet another example of how censorship targets stay one step ahead of the censors.

Obviously, the Chinese government wants to shut this down. But its options are limited. No one's buying Animal Crossing from Chinese stores because it hasn't been officially approved for sale by the Chinese government. There's a ban in place now, but it's not having much of an effect on gray market offerings. The game is already extremely popular in the country where it's not even officially for sale, with some citizens doing nothing more than changing their Nintendo eShop locations to access downloadable copies.

Censors will always lag behind the censored. That's the way the game is played. Proactive efforts tend to miss the edge cases. And bureaucrats overseeing large-scale censorship efforts are rarely as nimble or inspired as the citizens they're trying to silence.

Filed Under: animal crossing, bans, censorship, china, hong kong, protests
Companies: nintendo

Brave Whistleblowers Are Being Punished For Saving Lives During A Pandemic

from the whistleblowing-saves-lives dept

The coronavirus crisis has highlighted the importance of whistleblowers to a free and unfettered press. Throughout this emergency, it has been whistleblowers playing a critical role in informing the general public and forcing governments to make important public health decisions. And it has been whistleblowers that have pierced the will of governments around the world who have tried to downplay the significance of the threat facing their citizens.

In China, where the virus is believed to have originated, the government's "fail-safe" system for spotting contagious outbreaks failed to pick up the new illness, reportedly because local officials withheld information for political reasons. Instead, central health authorities learned about the outbreak when whistleblowers leaked internal local government documents.

These documents emerged alongside observations from Dr. Li Wenliang, widely known as "the whistleblower doctor," who warned colleagues about new patterns of illness in WhatsApp messages now credited with raising the alarm about the new virus. He was detained and forced to confess to spreading false rumors in January, and was subsequently diagnosed with COVID-19, leading to his death in February. The Chinese government faced massive online backlash for its handling of the Li case, and has subsequently attempted to reclaim him as a national hero.

In the United States, where the official response has been fractured and at times incoherent, whistleblowers have played a key role in escalating issues within the government and to the press.

It was reported in February that U.S. health workers were given neither special training nor protective gear when handling Americans who were in quarantine on Air Force bases after being evacuated from coronavirus hot zones. The information underlying that reporting came from a whistleblower report shared with Congress and obtained by media outlets.

That person's identity is not publicly known, and members of Congress have reported that she has been subjected to professional retaliation.

In the Navy, leadership was not taking adequate steps to protect its sailors from contracting and spreading coronavirus, according to a letter sent from aircraft carrier captain Brett Crozier to his superiors. The letter described conditions on the U.S.S. Roosevelt, which Crozier led, as it was ravaged by coronavirus. It was sent to multiple recipients through unclassified channels, which Navy officials said could encourage it to be leaked — as it ultimately was, to the San Francisco Chronicle.

Although the Navy has not publicly named a suspect for that leak, it fired Captain Crozier for his role in its release. (Crozier later tested positive for coronavirus as well.) The Acting Secretary of the Navy, Thomas Modly, flew to Guam to address the crew of that ship in a profanity-laden tirade that included a warning not to consider acts of whistleblowing in the public interest. In particular, Modly's address included the lines:

There is no, no situation where you go to the media. Because the media has an agenda and the agenda that they have depends on which side of the political aisle they sit and I'm sorry that's the way the country is now, but it's the truth and they use it to divide us and use it to embarrass the Navy.

His admonition against leaking was apparently ineffective, as audio and transcripts from his speech were released to multiple outlets immediately. Modly initially defended his remarks, but has since stepped down from his post.

Some of the most shocking stories about the disarray in the U.S. response to the coronavirus outbreak have concerned the shortages of personal protective equipment, or PPE, used every day in medical settings. The reasons for the shortages are varied — ranging from an insufficient national stockpile to the absence of a strategy for coordinating supplies between states — but reporting on the shortages has likely made a significant difference in spurring action to remedy those problems.

Some hospital administrators, however, have been openly hostile in their response to that reporting. In fact, at many hospitals around the country, doctors and nurses have been told that they could be fired for speaking with the media about the lack of PPE available to them. As the New York Times reported, in “the epicenter of the crisis in the United States, every major private hospital system has sent memos in recent weeks ordering workers not to speak with the media, as have some public hospitals.” Several nurses and doctors in the U.S. have already been suspended or fired for posting on Facebook about PPE shortages, protesting the shortages, or talking to the media about them.

These examples show courageous individuals going out of their way to correct the wrongs they've observed. In many cases, these are people who are already putting their life on the line for public health, taking extra steps to fight for the truth. That impulse should be rewarded, and at times governments have pursued that ideal, through legislative efforts to protect whistleblowers, or even reward them for their service.

Unfortunately, at the highest levels of the U.S. government, the impulse to root out corruption and inform the people has instead been punished at every turn. Most recently, this can be seen in the Trump administration's decision to fire the intelligence community inspector general responsible for fielding the whistleblower complaint that led to President Trump's impeachment last year.

Under any circumstances, that willingness to engage in political retribution and retaliation against a whistleblower would be cause for concern. But during a global pandemic, where a clear view of the facts as they are is of paramount concern, it may truly be a question of life and death.

Republished from the Freedom of the Press Foundation blog.

Filed Under: covid-19, free speech, pandemic, whistleblowers

Trump Campaign Actually Sues TV Station Over Anti-Trump Ad

from the bringing-free-speech-back dept

A few weeks back, we noted that the Trump Campaign was sending threatening letters about a TV ad by the PAC Priorities USA that criticized Trump's handling of the pandemic. You can see it here:

As we noted, the threat letters only caused a lot more people to watch the ad, and it seemed notable that they only focused on one single line in the ad, and not the rest of it. Now the campaign has, incredibly, made good on the threats and filed suit against at least one TV station, WJFW-NBC in Wisconsin.

The lawsuit is for "common law defamation" and is -- like so many Trump or Trump Campaign lawsuits -- not about any real legal issue, but mostly about three things: (1) creating chilling effects for others, (2) performing for the Trump base, and (3) fundraising for the campaign. There is no chance this lawsuit gets anywhere. Political advertising is among the most protected under the 1st Amendment, and, in fact, Congress has rules telling broadcasters that they cannot reject political ads from campaigns even if they're false. Of course, this ad is from a PAC, not the campaign directly, so that rule does not apply directly, but the general 1st Amendment principles still very much apply.

On top of that, there is no way in hell that the clips, as cut, meet the high bar for defamation of a public figure. The argument made by the campaign is that the clip takes one thing that Trump said -- "this is their new hoax" -- and takes it out of context. The context being that Trump was referring to the Democrats' "politicization" of COVID-19, and the ad implies he's saying that the disease itself is a hoax. The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it's misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate. The context here does little to actually make Trump look any better, and in no way rises to the level of it being defamatory.

On top of that, as I've pointed out repeatedly, the Trump campaign itself has regularly (for years!) posted much more misleadingly cut videos of his critics, including Joe Biden. So, even if the Priorities USA ad was defamatory, it would open up the Trump campaign to similar claims many times over. But it's not defamatory.

It's notable, of course, that Wisconsin, where this lawsuit was filed, has no anti-SLAPP law at all. And while the case is still likely to get thrown out at an early stage, the lack of an anti-SLAPP law means that (1) they're much less likely to get back attorney's fees, and (2) it's still going to involve much more expensive legal work than if they could use an anti-SLAPP law.

Still, even though the case will get thrown out, Trump will "succeed." Already I'm seeing clueless fans of Trump's (the same ones who insist they're all for the 1st Amendment) cheering on this example of Trump "hitting back against the fake news media" and it will almost certainly create chilling effects at other news stations that don't want to take on the time and expense necessary to defend even this kind of bogus lawsuit. And that's a huge shame, because a key aspect of the 1st Amendment is to protect political discourse -- even when that discourse is misleading.

At the very least, this case should be a strong reminder that (1) Wisconsin needs an anti-SLAPP law and (2) so does the federal government.

Filed Under: 1st amendment, anti-slapp, chilling effects, defamation, donald trump, edits, free speech, political advertising, slapp, trump campaign, wisconsin
Companies: wjfw

'Free Speech' Supporter Jerry Falwell Jr. Thinks It's Criminal To Report On His Dumb And Dangerous Response To The Pandemic

from the that-ain't-free-speech,-champ dept

Jerry Falwell Jr., the nepotistic hire to be President of the religious extremist Liberty University, has long pretended to be an avid free speech supporter, especially on the campus for his University, where he has declared:

There have been sensational stories written about Liberty and censorship, rumors that we do not allow opposing views or First Amendment rights. But that is far from true. We uphold freedom and put its ideals into practice.

Apparently, that commitment to freedom and First Amendment rights gets completely thrown into the garbage the second some reporters write stories about Falwell's ridiculously dangerous decisions in the face of the COVID-19 pandemic. A few weeks back, when most of the rest of the country was, smartly, moving into lockdown mode, Falwell, reopened school and told Liberty University students to come back to campus after spring break -- a move that local officials described as "reckless."

Soon after that, both the NY Times and ProPublica ran stories talking to students on campus who were scared and nervous about everything. If you read both of the stories, they're both more than fair to Falwell, and provide plenty of clarity in why he made the decision and the various steps that Liberty University had taken to try to keep campus open while keeping social distancing rules (though, they both show that not everyone was following them). To be clear, I wouldn't say that either of the articles paint Falwell in a particularly bad light, beyond reminding everyone how frequently and vehemently Falwell played down the threat of COVID-19 in the earlier weeks.

Falwell seemed particularly angry at the NY Times piece though the story seems to keep changing as to why. There were claims that the Times quoted a doctor who claimed to run health services at the University, but that the University then released a press release saying he had no role at the University -- but in looking at that press release as I type this, I no longer see the claim that he had no role, only that he was misquoted. Similarly, the NY Times piece appears to be quoting Eppes accurately, and it's the Liberty press release that (at least as of right now) misrepresents what the Times piece claimed.

Either way, apparently, Falwell really doesn't care much at all about the First Amendment that he claims to support on campus, because earlier this week, he somehow convinced a magistrate judge to issue arrest warrants for two of the reporters: Alec MacGillis, who wrote the ProPublica story, and Julia Rendleman, a freelance photographer, who took photos included in the NY Times report. Some reports claimed that Falwell also sought, but was unable to get, an arrest warrant for the NY Times reporter who wrote the NY Times piece. When this first came out -- via former Fox News host Todd Starnes (who left Fox News after having on a guest who claimed that Democrats worship a pagan god who "allowed for child sacrifice") -- it was described as Falwell issuing warrants, and that's just not how warrants work at all.

Later clarifications showed that Falwell complained to local officials that the reporters were trespassing, and that's how a local magistrate agreed to issue misdemeanor arrest warrants. And, those warrants do exist, incredibly:

Falwell is, laughably, claiming that this is about protecting his students (the same ones he's now put at risk), rather than retaliation:

Falwell cast his decision to seek a case against the journalists as a move to protect his students, asserting that the journalists had probably come from coronavirus hot spots such as Washington, D.C., or New York, and that by being on campus they had put remaining Liberty students at risk. He also complained that Liberty was being singled out because of its status as a religious school.

This is obviously nonsense. It is clear that that this was retaliating against negative press over his own decisions. I imagine both the NY Times and Propublica will have strong arguments for why these warrants are ridiculous. The NY Times has already made it clear that this was not trespassing, and that the reporter had been invited to campus by a student.

David McCraw, in-house counsel for the Times, said in a statement, “Julia was engaged in the most routine form of news gathering: taking an outdoors picture of a person who was interviewed for a news story.” McCraw said Rendleman had been invited to campus by one of the students interviewed for the article.

“We are disappointed that Liberty University would decide to make that into a criminal case and go after a freelance journalist because its officials were unhappy with press coverage of the university’s decision to convene classes in the midst of the pandemic,” he added.

Meanwhile, Falwell is also threatening a defamation civil suit against the reporters if corrections aren't issued -- which seems to only highlight how all of this is retaliatory and about suppressing speech, rather than protecting students.

Filed Under: 1st amendment, alec macgillis, arrest warrants, covid-19, free speech, jerry falwell jr., julia rendleman, reporting, retaliation, trespassing
Companies: liberty university, ny times, propublica

Knight First Amendment Institute Sues The CDC For Failing To Provide Details Of Its Media Gag Order

from the silence-is-a-bad-idea dept

We've talked quite a bit about the importance of clear and transparent government during the COVID-19 pandemic, and how China's (ongoing) refusal to allow for people to speak out almost certainly contributed to the pandemic becoming even worse. And now the same situation has been showing up across the US as well. We've talked about hospitals firing doctors and nurses for speaking out about supply shortages, and now there's news that the US Navy fired the captain of the USS Theodore Roosevelt, Brett Crozier, after he sent his bosses a letter pleading for help as COVID-19 was spreading throughout his crew. Rather than recognize that he was pleading for help, they fired him... because his letter got out to the media and it made them look bad.

The Navy fired the captain of the USS Theodore Roosevelt on Thursday, four days after he pleaded for help as the coronavirus ravaged his crew, the Navy announced.

Acting Navy Secretary Thomas Modly announced that Navy Capt. Brett Crozier was relieved for loss of confidence.

"I just know that he exercised extremely poor judgment," Modly said.

But, perhaps the worst of all appears to be the gag order on actual infectious disease experts within the US government. Back in late February, when VP Mike Pence was first put officially in charge of responding to the COVID-19 threat, it was quickly reported that the White House had put in place a media gag order on all government officials, saying that all communication had to go through Pence's office. Indeed, various media appearances were cancelled by top CDC officials.

In response to this, the Knight First Amendment Institute at Columbia had sent a detailed FOIA request asking for any records regarding policies and procedures governing public communications by CDC employees and contractors, as well as a variety of related items, including instructions sent by the CDC's Public Affairs office. Having not received a response, the Knight Institute has now sued the CDC demanding it turn over the information as soon as possible. Given the situation, you can see why this might be pretty damn urgent.

We are in the midst of a global pandemic. The novel coronavirus—and the disease that it causes, COVID-19—has spread to all fifty states. According to the Johns Hopkins Coronavirus Resource Center, as of April 2, more than 215,000 people in the United States have been diagnosed with COVID-19, and more than 5,000 people have died from it. At a White House press conference on March 31, a member of the Coronavirus Task Force stated that they expected 100,000 to 240,000 deaths from COVID-19, even with mitigation efforts.

In the face of this public health emergency, the White House has restricted the flow of information from the CDC—the nation’s public health agency—to the public. According to recent news stories, scientists and health officials at the CDC must now coordinate with the Office of Vice President Mike Pence before speaking with members of the press or public about the pandemic. These stories have raised concerns that public health experts who know most about the risks to the public are not being permitted to speak candidly and that the information the government is now conveying may be incomplete, inaccurate, or misleading.

The CDC itself imposes unusually stringent restrictions on the ability of CDC employees to speak to the press and public. In 2017, Axios published text from a CDC policy announcing that “any and all correspondence with any member of the news media, regardless of the nature of the inquiry, must be cleared through CDC’s Atlanta Communications Office.”

As the lawsuit notes, the CDC denied "expedited" status to the Institute's FOIA request claiming -- somewhat ridiculously -- that the Institute “failed to show that there is an imminent threat to the life or physical safety of an individual.” Yeah, not an individual, but to fucking everyone. Just... look around, dammit. The fact that we can't get straight answers from people at the CDC is contributing to this mess we're in today where thousands of people are dying and many tens of thousands more are expected to. It seems pretty damn petty for the CDC to quibble over this. But they are doing so, and hence, they're getting sued.

Filed Under: cdc free speech, covid-19, foia, gag orders, media
Companies: knight institute

SLAPP Suit Filed Against Fox News Over Awful & Dangerous COVID-19 Coverage

from the on-the-one-hand... dept

Pretty much everyone knew this was coming. Fox News' coverage of the COVID-19 pandemic has been absolutely despicable -- insisting that it was little more than the flu, was overhyped by Trump's political enemies, and nothing anyone should be worried about, before turning on a dime to suddenly pretend they never said any of that earlier, and that suddenly it was always obvious it was serious:

Of course, a ton of people not only still remember the earlier messaging, but continue to insist it was correct. I've seen it pop up over and over again in various internet forums, where Fox News watchers still, to this day, insist that it's little different than the flu and that all of the efforts to stop the spread are part of a "Democratic hoax" which was messaging straight from Fox News. The news channel, of course, is shameless in its buffoonlike support for the President's messaging, which is now almost certainly contributing to people dying. It's sickening.

But, that doesn't mean that anyone should be able to sue to silence Fox News -- but it was widely expected that there would be such lawsuits.

And now we've got the first one. As first reported by the Times of San Diego, a little-known non-profit in Washington is suing Fox News (it also throws in AT&T TV, and Comcast, claiming that they offer Fox News in their programming and "are named only insofar as they may have interests that would make them necessary parties, and no relief is sought from them") and trying to get an injunction to get Fox News to stop pushing nonsense about COVID-19, claiming that its existing reporting violates the states consumer protection laws. The complaint filed in Washington state court is a joke, filed by a group that calls itself the Washington League for Increased Transparency and Ethics or "WASHLITE." Except, as the Times of San Diego reports, it had trouble finding people who had heard of the organization before.

The group got a real life lawyer, Elizabeth Hallock -- who, um, is "an attorney and risk management consultant, a certified family law mediator and owns the Sweet Relief marijuana retail store in Yakima", and also is running for governor of Washington as a Green Party candidate -- to write the complaint, and I'd suggest she keep one of her day jobs. The whole argument is that by broadcasting misleading information, Fox News "engaged in unfair and deceptive acts" under Washington's Consumer Protection Act. Except, that's not what the law means. The unfair and deceptive acts need to be actions not protected speech.

The San Diego article has quite the interview with Arthur West, who runs WASHLITE, and it feels like every word he said is designed to troll Ken "Popehat" White:

West denied that the nonprofit group (with perhaps 30 associate members) was aiming to stifle First Amendment rights.

“It’s like the theater thing,” he said. “Up to the point where you get up in the theater and yell ‘Fire!’ you can say whatever you want. But when you get to the point where you are endangering the community — that transcends the limits of the First Amendment.”

He also contends that commercial speech is involved, not private speech by members of the public.

Of course, we've covered to death why you should never ever listen to anyone who spews the nonsense "fire in a crowded theater" line, because it's not good law, and was only mentioned (as an aside) in a since-superceded case that was about putting a politician in jail for protesting a war. Oh, and also, because it's the prime excuse used by every would-be censor. And while "commercial speech" does have fewer protections than speech by the public, that doesn't mean you get to just ignore the 1st Amendment. As despicable and awful as Fox News' coverage has been, it's all been protected free speech.

West also seems to think that, because people are dealing with Stay-at-Home orders around the country, the 1st Amendment is suspended or something:

Finally, ordinary conditions don’t apply in Washington, with First Amendment rights to assemble and travel already “rightfully” restricted, he said.

“Reasonable time, place and manner restrictions on speech have almost universally been upheld in the extraordinary circumstances where such measures are necessary to forestall a clear and present danger,” he said. “This is one such occasion.”

That is not how any of this works.

Also, a real lawsuit would include actual examples of the "unfair and deceptive acts." This one does not. It just talks vaguely that the network "acted in bad faith to willfully and maliciously disseminate false information denying and minimizing the danger posed by the spread of the novel Coronavirus, or COVID-19, which is now recognized as an international pandemic." As Ken White likes to say, vague complaints are usually the sign of censorial thuggery. Yes, it's true that people are spewing garbage because of Fox News' reporting, but that doesn't mean the network violated the law.

By creating a false belief in a statistically significant percent of the population that the coronavirus is a “Hoax,” the Defendants have created an epidemiological hazard. A subset of the population has and will continue to ignore or resist reasonable and necessary efforts to control and mitigate the virus and prevent mass death.

That's not how the law works, and if it was, it would be a disaster for the media -- even the media that is usually a lot more reasonable than Fox News propaganda. Sometimes reporters get things wrong. Sometimes they make mistakes. Making them liable in this manner would be a huge attack on a free press.

Also, as is evident from the interview in the San Diego coverage, the WASHLITE folks are entirely focused on trying to get internal Fox News documents in discovery -- which they probably are never going to get access to as this case should be tossed out before that's ever allowed.

Unfortunately, while Washington State used to have an anti-SLAPP law, due to some bad drafting the law was mostly tossed out as unconstitutional five years ago. Ridiculously, this seems to excite West, as when asked about this being a SLAPP suit, he told the Times of San Diego reporter about how Washington no longer has a real anti-SLAPP law. That's not something you should be proud of, dude.

No matter what you think of Fox news and its despicable coverage, this lawsuit is a SLAPP suit and an attack on the 1st Amendment. That it's filed by a group that purports to be about "transparency" and "ethics" and is run by a guy who claims to make his living as a public records advocate is shameful. Speak out all you want about how awful Fox News and its coverage has been. Tell everyone you can that it's spewing propaganda and misinformation. But that doesn't mean you get to sue and claim that it's an "unfair or deceptive" practice. That's just not how any of this works at all.

Meanwhile, the Daily Beast spoke to West as well, in which he notes that he's a former automobile mechanic and then proceeds to brag about how much money he makes suing the government over public records requests.

“This might seem strange to you,” he added, “but I make a very good living beating the government in court”—mostly suing local jurisdictions, politicians, and taxpayer-funded agencies using Washington’s public records and open records laws. “I’ve gotten a number of six-figure awards… I have a collection of European sports cars. I drive a Jaguar. I have three Mercedes 450 SLs and an Alfa Romeo. My house overlooks the water, and it was purchased with money from the liquor control board.”

West won a $192,000 settlement after filing an open-meetings lawsuit against the agency that governs Washington’s legalized marijuana industry.

Of course, thanks to a lack of a good anti-SLAPP law in Washington, it likely means he's protected from having to pay Fox News' (likely considerable) legal fees.

Filed Under: 1st amendment, anti-slapp, arthur west, consumer protection, covid-19, elizabeth hallock, slapp, washington
Companies: fox news, washlite

Virginia Court Reaffirms The Right To Give Cops The Finger

from the not-all-protected-speech-is-prudent-speech dept

It's pretty well established that giving the finger to cops is protected expression. Stopping or detaining someone for flipping you off violates their rights and the usual law enforcement excuses for unconstitutional behavior tend to perform poorly when examined by a federal judge.

In 2018, a Virginia federal court denied qualified immunity to Officer Rob Coleman for his stop of Brian Clark, who made a gesture that "was crude, but not criminal." Officer Coleman claimed he was "concerned" by Clark's hand gesture and was just doing some community caretaking by pulling over the car Clark was riding in. Literally unbelievably, the officer claimed he viewed the hand gesture as a sign of distress, as only a person "under the influence" of alcohol or drugs (or "suffering from some sort of mental illness") would dare do such a thing.

Of course, Coleman never made any inquiries about distress, mental illness, or intoxication during the 20-minute stop. The court denied Coleman's request for qualified immunity, stating it should have been clear stopping someone for throwing the bird would violate both the First and Fourth Amendments.

The case went to trial. Somehow the jury managed to find in favor of the cop who had violated two rights with his traffic stop. The jury said Coleman did not lack reasonable suspicion to stop and detain Clark for allegedly giving the officer the one-finger salute.

Clark challenged this verdict, asking the court to overturn the inexplicable decision by the jury to go against its own interests by saying it's ok for cops like Coleman to engage in retaliatory stops of people who've offended them.

The court agrees with Clark: this is indeed some bullshit. (via The Newspaper)

From the decision [PDF]:

After a review of the applicable law and relevant evidence, the court GRANTS Plaintiff Brian Clark’s motion to set aside the jury verdict and enter judgment for the plaintiff. ECF No. 141. The law plainly prohibits that which occurred here, and the jury’s verdict cannot stand.

There's no gray area for the court to explore. This was a violation of Clark's rights.

The law is this area is well-settled. The Fourth Amendment “prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.”

The jury may have returned a verdict. But a jury isn't allowed to condone the violation of Constitutional rights, even if every juror reached the same conclusion.

At trial, the jury was instructed that a traffic stop was a seizure under the Fourth Amendment, and that a stop is “reasonable if the officer had reasonable suspicion to believe the plaintiff had committed or was committing a crime.” Jury Instruction No. 15, ECF No. 137. Even taking the facts in the light most favorable to Coleman, displaying one’s middle finger is not illegal, nor does the gesture “on its own create probable cause or reasonable suspicion that [Clark] violated any law.” [...] Here, Coleman based the stop solely on Clark’s display of an offensive gesture. On that basis, the stop was not grounded in reasonable suspicion of criminal activity.

Nor does the "community caretaking" warrant exception apply here. The officer's own testimony undermined his own reliance on this exception.

[C]oleman’s traffic stop is not “totally divorced” from investigative functions, based on his own representations. [...] Similarly, Coleman argued that there existed reasonable suspicion to believe Clark was violating Virginia’s public intoxication statute, which forecloses reliance on the community caretaker doctrine to justify his actions. [...[ Because Coleman contends he was investigating a potential violation of Va. Code Ann. § 18.2-388, the community caretaking exception cannot justify his actions.

The verdict is set aside. It's still a violation of rights to instigate a traffic stop and detain someone for engaging in protected speech.

The evidence establishes Coleman effectuated a seizure of Clark without reasonable suspicion of wrongdoing, and that his actions, under color of law, amount to a constitutional violation. Because the evidence does not reveal any reasonable basis for the seizure of Clark following his constitutionally protected speech, however crude, inappropriate, and unwarranted it may have been, the jury’s verdict is contrary to law and must be set aside, and the court will direct judgment be entered for Clark.

Unfortunately for Clark, the judgment won't amount to any real money. Clark also asked to be allowed to pursue monetary damages if the verdict was reversed. The court says he's entitled to damages. But it doesn't believe Clark is owed much of anything for this 20-minute violation of his rights.

The court sees no reason to empanel a new jury on the issue of damages, because Clark did not demonstrate at trial the existence of any compensable injury.

[...]

Upon balancing the factors, the court finds plaintiff is eligible for attorney’s fees. The first factor instructs the court to compare the amount of compensable damages sought to the amount awarded. Id. at 206. While an award of nominal damages may appear limited relief, Clark never specified the damages he sought, primarily seeking a liability finding, condemnation of the officer’s behavior, and punitive damages.

Clark's lawyer will get paid. So will Clark, but the award is strictly symbolic.

The court DENIES Clark’s motion for a new trial on the issue of damages, instead awarding Clark nominal damages of $1 and attorney’s fees.

There's no money to be had but Clark still got the win -- a ruling that says cops can't violate people's rights just because their feelings have been hurt.

Filed Under: brian clark, middle finger, police, rob coleman, virginia

WTF Hospital Administrators? Now Is NOT The Time To Silence Doctors & Nurses From Commenting On COVID-19 Shortages

from the we-need-them-shouting-from-the-rooftops dept

What is it with people who should know better immediately resorting to censorship and gag orders in the face of important information sharing? With more and more reports directly from doctors and nurses about shortages of necessary protective supplies in the midst of a pandemic, there are also disturbing reports of hospital administrators trying to silence them, and threatening retaliation:

A hospitalist in Indiana took to social media  to plead for donations of N95 masks, hoping to help local hospitals prepare for the pandemic to reach them. Shortly afterward, administrators from his hospital contacted the online forum's moderator and the posts were removed, he told MDedge News. Administrators also warned him not post about personal protective equipment (PPE) because it made the hospital appear incompetent, and continued to monitor his social media posts. "I was told, 'We can handle this, we don’t need the public’s help,'" the physician said. "I was hurt and upset. I was trying to help protect my peers."

Clinicians across the country are being told not to speak to the media, and not to post on social media about their experiences. "There’s definitely a big fear among physicians, particularly employed physicians, in terms of what the consequences may be for telling their stories,” said one physician advocate.

Indeed, in at least one case an ER doctor was fired for pleading on social media for more safety equipment. That's right, in the middle of a massive pandemic, in which we need as many health professionals working as possible, PeaceHealth St. Joseph Medical Center in Washington was fired for telling the truth and trying to get assistance:

Ming Lin, who has worked at the hospital for 17 years and became a local cause celebre for his pleas for more safety equipment and more urgent measures to protect staff, was informed of his termination as he was preparing for a shift at the hospital Friday afternoon, he said.

“I got a message that said, ‘Your shift has been covered,’” Lin told The Seattle Times. He phoned his supervisor and was told, “You’ve been terminated.” Lin said he was told he would be contacted by human resources staff from his employer, TeamHealth, a national firm that contracts with PeaceHealth’s emergency department.

That seems absolutely insane -- and apparently lots of doctors agree. Public Citizen has organized a letter from dozens of organizations asking the American Hospital Association to condemn such gag orders and attempts to silence medical professionals telling the public the actual truth of what's happening on the ground in the midst of a horrific pandemic.

We were appalled to read recent media reports about hospital administrators across the U.S. muzzling doctors, nurses, and other health care professionals with threats of disciplinary action for speaking out about coronavirus patient caseloads and dwindling hospital supplies needed to care for such patients.

It is critical that the public and local, state, and federal government officials fully comprehend the scope of shortages of personal protective equipment, mechanical ventilators, intensive care unit beds, and other medical supplies so that appropriate steps can be taken to mitigate shortages of these essential medical resources, appropriately and fairly allocate limited resources, and thus protect the safety and welfare of health care workers and patients alike.

Attempts to cover up these shortages by muzzling health care workers who are on the front lines of fighting the COVID-19 pandemic are reprehensible and reckless and endanger public health. Although such actions may be commonplace in countries with authoritarian regimes, they are not acceptable in the U.S.

What's incredible to me is that this even needs to be stated in the first place. It's depressing how often people resort to censorship and stifling of speech in scenarios where it should be obvious to all that sweeping problems under the rug can mean literal death for health professionals on the front lines.

Filed Under: covid-19, doctors, nurses, ppe, retaliation, shortages, supplies, transparency