Judge Allows PEN America's Lawsuit Against Donald Trump Over Retaliation Against The Media To Proceed

from the the-first-amendment-has-legs dept

We've written a few times about the White House's unconstitutional retaliation against journalists it did not like, such as Jim Acosta and Brian Karem. PEN America, a key group fighting for free speech rights for journalists and writers, has now been allowed to proceed in its lawsuit against the President over his campaign of retaliation against journalists. PEN America had sued back in 2018, asking for declaratory and injunctive relief (basically the court telling the Trump White House to knock it off) against a variety of forms of retaliation he had done or threatened against the press.

Specifically, PEN America had raised five actions that Trump had done or threatened to do in retaliation against the press: barring access to White House briefings, revoking (or threatening to revoke) security clearances of ex-government employees for commentary made to news organizations, threats to revoke broadcast licenses, raising postage rates to attack Amazon in response to Washington Post coverage, and interfering with the AT&T/Time Warner merger over anger about CNN's coverage.

The DOJ had argued in response that PEN America had no standing, since Trump had not targeted PEN America. PEN America's response was that Trump had targeted PEN America members, including various news orgs and their employees, such as Jim Acosta. Indeed, when the filing was first made, we pointed out that the "standing" question would be a big hurdle. However, in a bit of a surprise, the court has said that PEN America has enough standing to proceed... at least on two of the issues at play:

Plaintiff has constitutional standing to pursue First Amendment claims against Defendant’s practice of (i) selectively barring access to the White House press corps, including by revoking or threatening to revoke press credentials, due to hostility to the reporters’ speech (the “Press Corps Claim”), and (ii) revoking or threatening to revoke the security clearances of former government officials whose commentary he dislikes (the “Security Clearance Claim”). As explained below, Plaintiff does not have standing to challenge Defendant’s alleged threats to revoke broadcast licenses, the executive order on postal rates, the directive to challenge the AT&T-Time Warner merger or regulatory threats against internet companies.

When PEN America first filed the case, we noted that the standing issue for those direct actions against companies would be a tough one, as it should be the media companies themselves who would have to file suit, rather than PEN America, and that seemed to be where the judge came down as well:

Plaintiff does not have associational standing for the other allegations -- Defendant’s revocation of security clearances, threats to revoke broadcast licenses, the postal rates executive order or the challenge to the AT&T-Time Warner merger and regulatory threats to internet companies -- because the Complaint does not identify any PEN America member who has standing to bring these claims. The only member named period is Mr. Acosta. But Mr. Acosta does not have a sufficient “personal stake” in these allegations to confer standing.

Basically, just because some of your unnamed members might sorta be impacted indirectly by these threats, that's not enough for standing:

Mr. Acosta is many steps removed from each of the challenged actions, and any purported injury to him is far too speculative.... Defendant’s remarks about revoking broadcast licenses are Twitter vitriol, posed as questions (“Collusion?” “At what point is it appropriate to challenge their License?”), and refer vaguely to “the Networks,” not to CNN where Mr. Acosta works. The injury to Mr. Acosta due to the AT&T-Time Warner antitrust lawsuit is similarly speculative, because the lawsuit targets only CNN’s parent. Likewise, the postal rates executive order, security clearance revocations and regulatory threats to Google and social media companies have no direct bearing on Mr. Acosta.

However, the surprising bit is that standing was granted regarding the direct issues regarding the White House press corp and former White House staffers who might lose their security clearance in a fit of anger by the President (this was done against former CIA Director John Brennan).

Here, the court says there's enough to let the case move forward on these points, mainly because it can name an actual person who was impacted directly by these issues:

The Complaint alleges that Mr. Acosta and the press corps have suffered an “objective harm [and] a threat of a specific future harm,”... and that Mr. Acosta’s resulting speech and receipt-of-information injuries are concrete, actual and particularized. Defendant has made an example of Mr. Acosta, by stripping his press credentials after he asked Defendant critical questions about the Administration, barring Mr. Acosta from the venue necessary to perform his job and directing the Press Secretary to warn other reporters that they would face similar consequences as Mr. Acosta.... The allegations furthermore suggest that Defendant punished Mr. Acosta publicly in order to chill his speech and the press corps’. In demonstrating that Defendant would in fact punish reporters who spoke critically, Defendant made his threats of future punishment more credible, and consequently, effective. The speech injuries are furthermore particular to Mr. Acosta. As a member of the press corps, and as a reporter specially targeted by Defendant, Mr. Acosta is uniquely vulnerable to Defendant’s threats. He also has a unique interest in hearing the questions and discussion of his press corps colleagues with Defendant, which facilitate Mr. Acosta’s own reporting.

The allegations also establish a causal connection between the injuries and the challenged conduct. It is plain that the injuries trace to Defendant’s actions. A favorable ruling furthermore will likely redress the practice. The Complaint explicitly pleads, quoting from the Press Secretary’s e-mail, that Defendant and his staff are ready to heed a court decision on proper rules of conduct for governing the White House press corps.

For what it's worth, the DOJ tried to wipe away the Acosta point by arguing that since it gave him back his press credentials, there was no issue, but the court points out (in a footnote) why that's not true at all, because the real issue is the chilling effect. And that's still around.

Defendant argues, to the contrary, that Mr. Acosta has no injury-in-fact because his press credentials were restored in November 2018. But this argument misunderstands the nature of the asserted injuries. Although loss of credentials may be injurious, Plaintiff has alleged instead that “speech [itself] has been adversely affected,” i.e. the injury of an ongoing chilling of speech and corollary ongoing interference with receipt of information.

As for the security clearance claim, the court also says that there's enough evidence to suggest a specific kind of injury for which it has standing. Part of the reason here, is that PEN America's advocacy role often relies on getting information from former government officials -- so a chill on them would harm PEN America directly.

With respect to the Security Clearance Claim, Plaintiff has a receipt-of-information injury because Defendant’s actions plausibly chilled the speech of the six government officials named in the Complaint. After four of these officials spoke critically about Defendant in the media, the Press Secretary announced that Defendant was considering revoking the six officials’ security clearances, expressly citing their media commentary. Defendant ultimately revoked the security clearance of one official, an allegedly unprecedented action by a President. The officials are otherwise frequent and willing speakers in the media. The Complaint has plausibly alleged therefore that Defendant’s retaliation and threats of further retaliation against these officials have objectively chilled the volume or quality of their media speech. Plaintiff’s right to receive the speech has in turn been impaired....

.... Plaintiff is an organization that, among other things, engages in advocacy for freedom of the press, monitors the government’s impact on the press, and publishes research and analysis on these issues. Plaintiff’s sources of information include these former government officials, who provide unique and expert insight on the Administration. Loss of these official’s speech is therefore not a generalized grievance and affects Plaintiff’s operations directly.... Thisinjury is indisputably traceable to Defendant’s actions. The allegations that Defendant and his staff will be responsive to court orders suggest that a favorable ruling would deter Defendant from retaliating or threatening to retaliate against the officials’ speech.

Separately, there's standing on behalf of PEN America's members who rely on those former government officials as well.

Similarly, Plaintiff has organizational standing as to the Press Corps Claim. Defendant’s actions have plausibly chilled the White House press corps’ speech, the questions they ask Defendant and the reporting they consequently are able to publish. The chilling impedes Plaintiff’s right to receive information. Since PEN America monitors how government interacts with press, and its own members are in the White House press corps, Plaintiff has a particular interest in receiving and monitoring this speech.

I still wonder how useful this overall case is -- and think it would have been stronger if those who were the direct targets of Trump's statements had sued on their own behalf. But, keeping the Trump administration from threatening retaliation so freely would certainly be a win for the 1st Amendment.

Filed Under: donald trump, jim acosta, journalism, postage, retaliation, security clearance, standing, white house press passes
Companies: pen america

Can ProctorU Be Trusted With Students' Personal Data?

from the legal-bullies dept

One of the hard lessons that I have learned over my years of practice is that, although some lawyers believe that they can increase the in terrorem effect of a complaint or a demand letter by piling on claims, the net effect of adding silly assertions can be to make things worse for your own client and not better. That may be true as well of the demand letter recently sent by David Vance Lucas of Bradley Arant Boult Cummings on behalf of their client, ProctorU.

Criticisms and Demand Letter

The saga begins with a faculty association at the University of California at Santa Barbara, which heard about a potential problem with the data-sharing policies of ProctorU, a business that provides internet-based test monitoring services. The group took a look at the ProctorU privacy policies and did not like what they saw – in their view, it provided too little specificity about the limitations on data-sharing, and no protection for the data in the event that ProctorU were to go into bankruptcy or merge, possibly without restrictions on use of the data. And online discussions by students subject to ProctorU monitoring have shared a variety of concerns about the creepy nature of ProctorU’s interventions; the students were plainly worried about the attending possibility of data accumulation. The faculty association voiced its concerns in a letter to the leadership of the University of California at Santa Barbara, urging them to stop using ProctorU and to avoid using “any other private service that either sells or makes students’ data available to third parties.” The letter was discussed in a story in the school’s student newspaper.

It is apparently ProctorU’s position that the faculty association’s concerns are overwrought. I have no opinion about that dispute. But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU’s web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of willfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic. Without quite meeting the faculty criticisms, the letter provided a restatement of the ProctorU privacy policy from a sanitized perspective, and on that basis demanded that the faculty group stop its “misrepresentation and misstatement” of the privacy policies; retract the complaints; and agree never to use ProctorU’s “family of marks and copyrighted materials.” In subsequent correspondence, Lucas has demanded that each member of the faculty group’s board sign a groveling letter in which they would have to take personal responsibility for the group’s criticisms, admit that many of statements for which they would be taking personal responsibility were false, endorse Lucas’ unproven assertions about his client’s privacy practices, and retract both the letter and the request that USCB stop using its services.  It is my firm belief that Lucas's letter and followup emails, and especially the demanded retraction letter, had the intended effect of terrifying the faculty group, if only because they know how much it can cost to hire lawyers even when you have done nothing wrong  -- until they started hearing that pro bono representation could be a significant possibility.

The Federal Law Claims Are Completely Bogus

My immediate reaction to this letter was to feel uncertain about whether ProctorU had any valid defamation claims, but my attention was drawn quickly to the contentions about federal intellectual property law, all of which are nonsensical.

First, the copyright claims. Lucas argues that by repeating some of the language from the privacy policy in their letter, the faculty group infringed the copyright in the privacy policy. One thing that is decidedly odd about this copyright claim is that, at the same time that Lucas is claiming improper copying, he is claiming that the letter misstated the privacy policy. Either the letter contains exact quotes or it doesn’t. But beyond that, any language taken from the policy is plainly fair use — when you are criticizing a written text, you often have to quote the text being criticized. And beyond that, my search of the copyright database did not identify any copyright registrations by ProctorU.  So it would have to register before suing, and failure to register previously would be fatal to any monetary claims besides actual damages. Those would be copyright damages, not damage to reputation. Hard to believe there is any copyright injury here.

The demand letter invokes the ACPA but it is hard to see why, other than to give Lucas an excuse to put the phrase "bad faith" into the letter (he mentions that statute’s “bad faith factors,” none of which point in the direction of bad faith so far as I can see), and to threaten statutory damages and attorney fees. But the ACPA could have provided a remedy only if the faculty group had the registered or used  a domain name to place its communications online; it does not provide a remedy for mentioning the URL's of some pages within ProctorU’s own web site in the body of a text, or for linking to those pages. Moreover, quite a number of cases under the ACPA and the Lanham Act allow the use of trademarks in domain names for web sites that comment on the trademark holder, including Lamparello v. Falwell, Bosley Medical v. Kremer, and Taubman Company v. WebFeats (a wonderful account of that latter litigation, full of the quirky sense of humor that my client Hank Mishkoff maintained throughout the litigation, can be found at the Taubman Sucks web site). I should note that although the faculty group did not register a domain name for their letter about ProctorU, there are plenty of ProctorU domain names ready for the taking, each of which could be lawfully used for a campaign to criticize that company for hiring David Lucas to send this letter, or indeed for criticizing Lucas or his client's funders.

The trademark claims are equally faulty. First of all, under the doctrine of nominative fair use, trademarks can be used to identify the subject of a criticism, and injunctive relief imposed for the use of marks for criticism would run afoul of the First Amendment, as established in such cases as Nissan Motor Co. v. Nissan Computer Co., and CPC International v. Skippy, Inc.  Moreover, a number of cases, including Bosley and Taubman, cited above, hold that trademark claims may only be brought over commercial uses of trademarks, thus avoiding unnecessary conflict with the First Amendment. In a case called Radiance Foundation v. NAACP, the Fourth Circuit came awfully close to agreeing with that limitation, but confined itself to holding that the statutory language of the trademark laws must be read as being limited to regulation of uses that could properly be treated as commercial speech.

The faculty association's letter was not commercial speech. The letter seems to suggest that the UCSB faculty are worried about facing economic competition from ProctorU for their proctoring services. But apart from the fact that the mere possibility of an economic interest at play does not make speech commercial (for which see Nike, Inc. v. Kasky), the argument reflects a certain air of unreality. All of the college faculty that I know hate proctoring and do not want to spend their time on that task; when possible, they slough off this work on graduate students. They might, at the same time, have genuine concerns about student privacy.

Lucas’ bio page at the Bradley Arant web site indicates that “intellectual property” is among his practice areas. My initial assumption was that, being an IP specialist, he must have known how frivolous his trademark and copyright claims are. But as I started reading the IP cases listed on his bio page, it struck me that his IP practice may have been confined to patent law; if so, then his letter only reflects bumbling, not malice.

Even the Libel Claims Seem Spurious

Although it was the silly intellectual property claims that spurred my interest in this matter, the more I have thought about the libel side of the case, the less potent the claims have seemed to me. On its face, the strongest point in the demand letter is the contention that ProctorU never sells the data that accumulates – and if that were true, and if the faculty letter had accused ProctorU of selling the data, that might well qualify as material falsity. But in fact the letter only complains that ProctorU shares the data with others; the only reference in the faculty letter to “selling” is in the phrase quoted above: after urging that UCSB drop ProctorU, it also urges a more general policy: not to use “this service or any other private service that either sells or makes students' data available to third parties.” There is no charge in the letter that I can see saying that ProctorU sells data.

The rest of the libel discussion in the demand letter is a big nothing. Lucas says this in his letter: “Contrary to your misrepresentations, ProctorU does not sell or share any information it collects to any third parties.” But would Lucas make that assertion under oath? After all, just two paragraphs before that, his letter says, “ProctorU only collects, uses and shares student personal information to provide its proctoring services . . . and to ensure the integrity of the tests it proctors.” And one paragraph before the denial, he says, “ProctorU . . . transparently discloses all information that could be collected, used or shared, and specifically identifies the types of third parties with whom it shares student information.”  (all the emphasis is added).  Now, this admitted sharing may or may not be justified – that is a matter of opinion – but it is simply not false to say that ProctorU shares information with third parties. Not false unless Lucas’s own admissions are erroneous.

Without a claim of substantial falsity, ProctorU’s threat to sue for defamation falls apart. Lucas also tosses in the names of two more torts: intentional interference with existing and prospective business relations into his hopper. But without a sustainable claim of falsity, those tort claims cannot survive.

ProctorU’s disproportionate response to the faculty group’s criticisms make me wonder just what there is to hide about the company’s data-sharing practices. Lucas’s letter contains a number of broad and conclusory assurances about his client, but no proof. I have to wonder what discovery, or an investigation by state authorities proceeding with enforceable subpoenas, might reveal about just what data gets shared with what third parties, and under what circumstances and with what protections against further dissemination.

I have asked Lucas to justify his claims under both state and federal law, and he refused to respond, claiming that I would surely appreciate that he “cannot address issues pertaining to a client with you” unless I told him that I was representing the faculty group.  (I have not yet decided about that).   No, I do not appreciate that he “cannot” - I took it as a dodge by a lawyer who would rather not explain his misstatements about the law.  After all, he sent his demand letter not only to the faculty group but also to counsel for the University of California and for UCSB, as well as to the California Attorney General and to the U.S. Attorney for the Central District of California, the latter two with the pretense that the faculty’s letter is “directly impacting emergency efforts to mitigate civil disruption across the United States.” Ah, yes, terrorism – maybe he should ask them to invoke the PATRIOT Act against these faculty terrorists. (Some of the respondents to the Popehat Signal on this case  raised the question whether this is an unlawful threat of criminal prosecution).   But he has showed no compunction about providing his thoughts about the case to lawyers who do not represent the target of his threats.

Stop the Bullying of Critics

In sum, I see little merit to this demand letter, and the nasty character of the demand deserves a forceful response. My efforts to  engage Lucas in explaining his claims, and to get him to listen to reason, have failed.   So my suggestion to members of the public is that they communicate their views both to ProctorU itself and to Eastside Partners, a venture capital firm that has provided funding for this company. Three of the five members of the ProctorU board appear to work at Eastside Partners. So Eastside Partners could pull the plug on Lucas’s bullying, if it chose to do so.

Reposted (with permission) from the Public Citizen Consumer Law & Policy Blog

Filed Under: bullying, copyright, data sharing, david lucas, defamation, free speech, privacy, privacy policies, trademark
Companies: procturu, ucsb

President Trump Is So Upset About This Ad Showing His Failed Handling Of COVID-19 That He's Demanding It Be Taken Down

from the good-luck-with-that dept

Has no one explained to Donald Trump how the Streisand Effect works yet? His campaign has apparently been sending laughably ridiculous threat letters to various TV stations that have been airing an advertisement put together by a group called Priorities USA, criticizing the President's handling of the coronavirus pandemic. The ad highlights Trump's repeated statements playing down the virus and insisting that he had things under control, even as the numbers of infected started to rise exponentially. It's a pretty effective ad. You can see it here.

Priorities also posted the ad to Twitter, and according to a Fox News article, the campaign has also asked Twitter to "flag a nearly identical ad... but the social media giant refused."

The letter is amazing in three separate, but equally dumb ways. First, it focuses solely on just one of the lines that the ad quotes Trump saying: "this is their new hoax." He did say that -- as the letter from his campaign readily admits. Their complaint is that the statement is out of context, and that what Trump was calling a hoax was actually the politicization of the virus response efforts. As the letter notes, here's the statement in full context, that Trump made on February 28th:

Now the Democrats are politicizing the coronavirus. You know that, right? Coronavirus. They’re politicizing it. We did one of the great jobs, you say, “How’s President Trump doing?”, “Oh, nothing, nothing.” They have no clue, they don’t have any clue. They can’t even count their votes in Iowa, they can’t even count. No, they can’t. They can’t count their votes. One of my people came up to me and said, “Mr. President, they tried to beat you on Russia, Russia, Russia.” That didn’t work out too well. They couldn’t do it. They tried the impeachment hoax. That was on a perfect conversation. They tried anything, they tried it over and over, they’ve been doing it since he got in. It’s all turning, they lost. It’s all turning, think of it, think of it. And this is their new hoax. But you know we did something that’s been pretty amazing. We have 15 people in this massive country and because of the fact that we went early, we went early, we could have had a lot more than that.

So, here's the problem. He absolutely said that "this is their new hoax" which he is quoted as saying. The fact that he's referring to the politicization rather than the virus itself is not nearly enough for the ad to violate any possible law. Even in context, it's a problematic statement, as what he's complaining about is the fact that many people were raising alarm bells and he was trying to play down that the whole issue was a problem. As such, it's still pretty damning.

But the fact that the letter literally spends three pages whining about just the "hoax" line, while not mentioning any of the rest of the ad is them totally conceding all of the other moronic stuff the President has said. Indeed, one of the lines -- the "15 people" line -- is also in the ad, and the Trump campaign apparently has no problem with you knowing that he completely downplayed how many people were going to be impacted by COVID-19.

The second dumb thing about the letter, of course, is that the campaign just called a shit ton of attention to it. The ad got some attention, but now it's getting way way way more attention. And even if you took out the hoax line, it's a pretty damning account of a President who refuses to take responsibility or to recognize the seriousness of what has happened under his watch.

The third dumb thing about it is that this is the Trump campaign. They're famous for posting and highlighting selectively edited videos of people they dislike. Hell, at around the same time they were apparently sending this letter, the campaign's Twitter feed posted a heavily edited video of Joe Biden, presenting his recent TV appearances much more out of context than anything in the Priorities ad. Hilariously, the letter cites a bunch of fact checking sites -- including The Washington Post, a company that the campaign itself is currently suing, and which Trump himself regularly accuses of publishing fake news about him. And, yet, if we were to look through the fact check sites quoted in the letter, we'd find that they regularly claim that Trump himself is spewing false information -- and that's never ever stopped Trump, so why should it stop his opponents?

And that's not even getting into why the threat is legally nonsensical -- claiming that failing to take down this add "could put your station's license in jeopardy." This is just silly. Airing political ads that contain false information has been controversial, but is mostly legally protected. Attempts to put in place legal requirements for "truth" in political advertising have been regularly struck down. Notably, the letter from the Trump campaign ignores that, and focuses entirely on cases regarding truth in commercial advertising. But not political advertising.

Also, threatening a TV station that you will have its license to broadcast removed for airing a political opponent's ad is just, in general, a really bad look. It seems likely that most TV stations will dump this letter in the garbage bin where it belongs, but in the meantime, the Trump Campaign has just Streisanded this ad into a ton more views.

Filed Under: covid-19, donald trump, political ads, streisand effect, trump campaign
Companies: priorities usa

Houston Police Chief Says He'll Prosecute People For False Statements About COVID-19 Response; Won't Debate 1st Amendment

from the that-constitution-thing-is-kinda-important dept

We already went over this with Newark, NJ, but now Houston's top law enforcement officer is falsely claiming he can and will prosecute people for making false statements about Houston's COVID-19 response. It started with rumors on social media that the city was going to go into lockdown -- which is not a crazy rumor given that plenty of other places in the country (and the world) have more or less done this exact thing already (including the entire state of California). But Houston Mayor Sylvester Turner tweeted that this was false information and he was asking law enforcement to investigate:

That says:

There is a video on social media of a person saying she was in a meeting with government officials confirming that there will be a city lockdown this weekend or Monday. All of this is false. I am asking HPD and Harris County DAs Office to investigate for possible prosecution.

Houston Police Chief Art Acevedo then responded to the mayor on Twitter, saying that the police "have launched an investigation" and something about "nation actors intentionally spreading misinformation."

Now, it should be noted that we've written about Art Acevedo a few times now, including his ridiculously bad response to his officers completely botched a no knock raid that killed two innocent people. Acevedo, who came to Texas (first to Austin, then to Houston) promising "reform" and cleaning up police departments hasn't always done such a great job of that -- but you'd at least expect him to know how the 1st Amendment works.

But, no, that's too much apparently. Also, when confronted on this... he trotted out the very wrong "fire in a crowded theater" line:

As a reminder, that line is not good law, and is the excuse most commonly used by bumbling idiots to defend unconstitutional censorship.

Even once a bunch of experts in this space piled on to point out to Acevedo he was wrong, he kept it up, with a ridiculous press conference in which he said that he had no time to debate 1st Amendment lawyers:

We have opened a multi-jurisdictional investigation. I had a 1st Amendment lawyer arguing with me on Twitter, and the mayor on his tweet. We're not gonna debate the law. I'll just say that the US Attorney's Office is now involved in this investigation. Our federal partners are now involved in this investigation and we will prosecute anyone to the fullest extent of the law. I've been in touch with the DA's office. I've been in touch with our federal partners. And the bottom line is that we have investigations ongoing.

Yeah, except (1) you can't prosecute people for mere rumors on social media, and (2) saying that you are going to prosecute false information is incredibly dangerous because it stops people from sharing valuable and useful information if they're afraid that it might not be fully verified. We saw this in China, where police went after the doctor who was trying to raise the alarm about COVID-19 and it silenced him and probably slowed worldwide (and local) attention to the risks of COVID-19.

Even more ridiculous, right before saying that he was going to prosecute people for false statements, Acevedo said (and I kid you not) that you shouldn't listen to anyone on social media, but you should listen to the President -- the very same President who has been a veritable fire hose of misinformation regarding COVID-19. Meanwhile, much of the good and useful information has been spreading by experts on social media, just as Acevedo is saying not to listen to any of it.

As it relates to the individuals who continue to spread false information: you should be ONLY listening to your elected officials, or to your appointed officials, for information on what is happening or is about to happen. If there's a change, only believe it when you hear it from the Mayor, the judge, the Governor, the President or the people that they appoint for these type of responses.

Now, sure, you should listen to officials to get specifics on the official response, but mentioning the President at a time when he's spewing so much disinformation and then immediately insisting that disinformation is criminal, is just crazy. Oh, and then he also insists that the misinformation is coming from foreign sources:

Secondly, the majority of this information, a lot of, it's not just coming from individuals, but from nation states. I'm gonna repeat: nation states, that are purposefully putting out information that try to cause pandemonium. That try to get a reaction from the public.

Citation needed, chief. Yes, I'm sure that some information on social media is being put out by nation state trolls trying to wreak havoc. But "the majority" of it? Come on. Also, again, importantly, there's been a ton of incredibly useful information and details on social media talking about how to best respond to this, from how to "flatten the curve," how to stay safe, how to wash your hands, how to practice social distancing, even to the point of how to help make medical equipment to help protect medical professionals. Telling everyone not to listen to any of it and that you'll prosecute people for posting that info is downright dangerous by itself.

I don't expect everyone to understand the ins-and-outs of the 1st Amendment, but a police chief of a major city, certainly should.

Filed Under: 1st amendment, art acevedo, false statements, free speech, houston, sylvester turner

Interview With Liz Mair, Whom Rep. Devin Nunes Is Suing For $400 Million Because She Was Mildly Mean To Him

from the moooooo dept

It's been one full year since Rep. Devin Nunes kicked off his long series of frivolous SLAPP suits against various critics. While the suing of satirical Twitter accounts still get the most headlines, two of the lawsuits (including the first one) target Liz Mair, a political consultant who has worked on numerous Republican campaigns (and was a spokesperson for the RNC). It's still unclear why Nunes targeted Mair in particular, who has pointed out how this is a clear attempt at stifling free speech, but he seems particularly annoyed with her. Most elected officials learn that part of being in public office is that you get criticized, but Nunes seems to think that anyone who criticizes him deserves to get sued. Mair has now launched a new website, NunesVFreeSpeech.com, seeking donations for her own legal defense, and in defense of free speech. Mair also agreed to answer some questions I had about her experiences over the last year in dealing with this lawsuit.

When and how did you find out that Nunes was suing you for defamation? Was there any contact prior to the filing of the lawsuit?

I was sitting down to a nice chicken dinner that my mother had helpfully made so that neither my husband nor I would have to cook on a busy weekday, and my phone started ringing. I try to apply a pretty strict no phones rule during dinner, but I answered Kate Irby’s call. She was calling for comment on the first lawsuit — the $250 million one in Henrico. Unsurprisingly, I didn’t have a comment.

The only contact I can recall having had with anyone in Nunes’ orbit prior to the lawsuit being announced was on the days I delivered the shoes and T-shirt to his office. When I went to the bathroom before filming the shoes delivery, I encountered one of his female staff in the bathroom. She’d seen me getting ready outside his office, on my read she knew exactly what was going on, and on my read she seemed to think it was funny. And then obviously, I handed the shoes and the T-shirt off to people in his office, I assume staff assistants or maybe interns. They were very polite and professional.

I never got any cease and desist type letters, no asks to delete or revise tweets, no requests from his office or his campaign or any mutual contacts or acquaintances to stop anything I was doing or to indicate he had any issue with anything I did in 2018. Or frankly ever. He still hits me up for campaign contributions, too, by mail and by email. He did through a bunch of 2018, also, even after I’d been very obviously and publicly criticizing him.

What was your initial reaction to the lawsuit(s)?

First off, let’s be clear: While I’m a tall, but not a big girl, I like my food and I have a big appetite. So if you get between me and dinner, I’m going to be at least a little pissed off. That’s definitely his biggest win in terms of causing me any pain or distress in the course of this process: He got between me and food.

But beyond that, my reaction was fairly muted. If I remember correctly, there was a delay in his lawyer filing the relevant paperwork so initially, I wasn’t sure if it was real or just something he said he was going to do but wouldn’t follow through on. I recall giving my lawyer a heads up that night. I also recall thinking “wow, this guy just really elevated my public profile, that’s interesting,” that he was probably about to experience the Streisand effect, and wondering why he was so intent on drawing attention to things that he claimed to think were so massively damaging to his reputation.

Have you had any prior interactions with Rep. Nunes?

Not that I can remember, though it’s totally plausible that I would have met him at some California GOP event somewhere in the course of my career, and equally plausible that I might have “slighted" him by not recognizing him or treating him as super important or cool or like someone I wanted to grab a drink with. Someone mentioned that possibility to me not long after news of the first lawsuit broke. The truth is, I’m not very deferential to politicians, and I don’t really care about socializing with people who aren’t my husband, my kid, or my close friends or family.

Of all the people criticizing Nunes (and it's a long list), why do you think he focused so much of his attention on your tweets?

It’s hard to say. I’d love to inhabit Devin Nunes’ mind for just 30 minutes and see what goes on in there, because I’m guessing it’s fascinating, but I really can’t speculate as to his thought processes. I don’t personally think I can possibly be this interesting, but I guess I am to him.

I guess, for the record, are you either Devin Nunes' Cow or Mom (and, by that I mean, the satirical accounts on Twitter, not his actual cow or biological mother)?

I am not, and I would note that it’s possible all of this results from a massive misunderstanding. I make a lot of “your mom” jokes on Twitter, so I guess one could reasonably think I might choose to impersonate someone’s mom as a trolling exercise. And I tweet a lot about animals and like animals, including cows, so again, maybe in some universe it makes sense that I might spend time tweeting as a fake anonymous bovine. However, I’m neither the cow nor the mom, and I don’t know who either of them is.

You've stated publicly that this is an attack on your free speech. Can you describe the impact that this lawsuit has had on your public statements? Do you worry about additional lawsuits?

I’m always cautious to say Nunes is using litigation as a cudgel to try to stifle my free speech, rather than saying he is stifling my free speech. It’s my constitutionally-guaranteed right to speak about politics, politicians and other public figures.

I do crack a lot more “call your lawyer” jokes on Twitter than I used to.

I will also say that most people probably don’t have the same resources to resist a suit like this, and might self-censor and go silent like a guy who’s just had his tongue cut out — or worse yet, offer to settle to make it go away, and thereby financially reward the plaintiff. In my opinion, these lawsuits are deeply objectionable in terms of undermining a key liberty underpinning our democracy and if successful, the precedent they will set will absolutely be used against people Nunes considers friends and allies in future.

With regard to additional lawsuits, I would say “worry” is a strong word. Nothing is certain in life, but Nunes does seem rather occupied with suing other people and entities at least during this particular period.

In your own response to the first lawsuit, you argued that California is the proper venue, rather than Virginia, where you used to live. Why do you believe that to be the case?

I think the filing lays this out pretty clearly and I’d urge people to read it, but here’s the Cliffs Notes version: This is a California lawsuit about a California congressman and allegations contained in another California lawsuit about conduct that took place in California. I could go on, but of course, our filing exists online for all to read and that’s a better explanation of my position here than a quickie answer will ever provide.

Why do you think Nunes filed his lawsuit in Virginia, rather than his home state of California?

Again, as much as I’m sure Devin Nunes’ brain is a fascinating place, I’ve never visited it so I just can’t say. Other people have clearly suggested he’s engaged in litigation forum-shopping. From my standpoint, I mostly think it’s the ultimate irony that a sitting government official who has sworn an oath to support and defend the Constitution — all of it, not just the bits he likes — is suing me to try to stifle my free speech in the home state of James Madison, Father of the Constitution, who wrote the First Amendment and said the censorial power rests in the people over the government. He’s the government here — literally, a sitting congressman and ranking member of a House committee — and I’m the people.

So far, the court has rejected the venue argument. What is your reaction to that decision?

I respect the judge's decision and I’m grateful for his careful consideration of the issues, though I personally see the law differently for the reasons set forth in my filings.

California has a notably stronger anti-SLAPP law to protect speakers from these kinds of intimidation lawsuits than Virginia has. What is your opinion of anti-SLAPP laws? Do you think we need a federal anti-SLAPP law?

I think all fifty states should have strong anti-SLAPP laws on the books. They protect free speech and allow citizens to hold the government and politicians accountable. Frankly, even California’s should probably be strengthened, perhaps to allow defendants hit with SLAPP cases to claim some additional amount to compensate not just for legal costs and fees but also for wastage of their personal and professional time and any associated emotional or physical distress.

In general, I’m a 10th amendment person, so my preference would be to see all fifty states independently put strong anti-SLAPP laws on the books rather than pass a single federal law.

That said, a federal law in this case would clearly be supporting a clear, federal civil liberty guaranteed by the US Constitution, so I can see the argument for a federal law in this instance also.

The bottom line here though is that free speech is under attack from a literal, sitting government official and I think that would have Madison rolling in his grave and should have everyone in the country, regardless of their philosophy or ideology, jumping up and down and screaming “no!” in Nunes’ general direction. In my opinion, what he is doing is both an absurdity and an anti-liberty travesty that could really backfire on people like President Trump if he is ultimately successful. Think of it this way, if the President were worth $2.5 billion, it would only take ten lawsuits like the first one Nunes filed against me and Trump is bankrupted. And Trump spends a lot of time mouthing off on Twitter.

What has surprised you the most about the process of being sued? What is something that people who haven't gone through this process might not realize?

Two things. First, separate to needing strong anti-SLAPP laws everywhere, how desperately we need loser pays tort reform in this country. I was never a big tort reform person, though I am told there is a time when Nunes championed federal tort reform legislation. Anyway, I’ve come around on that. Second, how slow the process is. The American legal system is definitely not what it is depicted as being on TV and in films.

Do you find it even a tiny bit ironic that Devin Nunes sponsored a bill to stop frivolous lawsuits? And that he voted for a House amendment "to express a sense of Congress that free speech should be protected" just 12 days before suing you for your tweets?

Ah, see, there you go — you evidently are familiar with his congressional record on tort reform.

I actually wasn’t aware of his vote on that House amendment or the timing of it, but thanks for the tip.

As for irony, suffice to say I think there are a lot of things that are ironic about various political and policy positions that Nunes holds. I also think it’s ironic that he’s suing me for $400 million total and keeps sending me fundraising mail and emails. I guess he’s very eager to drain my bank account one way or another.

Filed Under: 1st amendment, anti-slapp, devin nunes, free speech, liz mair, slapp, slapp suits

Routing Around Damage: Censored Reporting Hosted In Custom-Built Minecraft 'Library'

from the finally-a-use-for-all-the-books-in-the-Elder-Scrolls-series dept

As it has always been, the internet sees censorship as damage and routes around it. Reporters Without Borders is ensuring forbidden information is getting into the hands of whoever wants it, no matter what their government feels they should or shouldn't read.

The nexus point isn't a website tucked away on the dark web, only accessible via VPN and a Tor connection. It's right there out in the open, delivered via a platform very few governments have bothered to censor. Here's Reporters Without Borders' understated announcement of its damage-dodging info dump:

In many countries, websites, social media and blogs are controlled by oppressive leaders. Young people, in particular, are forced to grow up in systems where their opinion is heavily manipulated by governmental disinformation campaigns.

But even where almost all media is blocked or controlled, the world’s most successful computer game is still accessible. Reporters Without Borders (RSF) uses this loophole to bypass internet censorship to bring back the truth – within Minecraft.

The Minecraft map -- designed by Blockworks -- provides users in the more than 180 countries where negative information about local governments is being suppressed with access to reporting and other information that may have been buried by those in power.

But it's not without its risks, as Devin Coldewey reports for TechCrunch:

Of course, this is not secure and private like an end-to-end encrypted chat group. A user accessing the library map might have their nickname, tied to a Minecraft account, be visible to other users, and their logs would reflect the visit. It seems unlikely Microsoft would give up that information to a curious government, but there is a certain risk involved.

The upside is this surreptitious library is being duplicated and local copies being downloaded, mitigating some of the risk and allowing those in repressive countries to engage with the materials offline from the relative safety of their own devices.

Will this library survive and remain a source of otherwise-suppressed info? It's hard to say. Regimes that want to keep this information out of their citizens' hands are likely to react badly now that this library's existence is no longer a secret. But if it's already being downloaded for offline access and mirrored in places governments won't think of looking, chances are it will remain viable until a better option presents itself. And it will make authoritarian regimes realize someone will always find an edge not covered by their opacity blanket, and get information that these governments don't want distributed to the citizens they're trying to keep in the dark.

Filed Under: censorship, free speech, library, minecraft, uncensored library
Companies: reporters without borders

People In Kashmir Can't Access Coronavirus Information Because The Government Is Crippling The Internet

from the a-bad-problem-worse dept

As we've been discussing for a while, India's government has blacked out internet access in Kashmir since around August, setting records for one of the longest government-mandated internet blackouts in history. India's Prime Minister Narendra Modi has tried to argue that the blackout is a necessary security precaution in the face of growing unrest in the region stemming from its loss of autonomy earlier this year. Granted, like most government internet censorship efforts, the move has a lot more to do with cowardice and fear of an informed public than any genuine concern about public welfare.

Despite the Indian Supreme Court declaring such restrictions illegal last January, the problem persists. And as a pandemic threatens the planet, these restrictions are making it hard for the residents of Kashmir to access essential medical information on COVID-19:

Worse, the government, just this week, actually expanded the existing restrictions until March 26, insisting they were necessary to "prevent misuse of social media applications" in the wake of "recent terror activities":

One local tells Buzzfeed the ham-fisted, counterproductive restrictions have made it difficult if not impossible for locals to access information on the rapid spread of COVID-19:

"I can’t open even basic websites that provide information and advice about the pandemic,” Nayeem Rather, a freelance writer based in Srinagar, the largest city in the state of Jammu and Kashmir, told BuzzFeed News. “Most people in Kashmir don’t really have any information about the coronavirus or what is going on in the world right now. It’s a crisis."

Mir Moien, a medical student from Kupwara, a small town in northern Kashmir, said that the most he’s able to do right now is a Google search to find out information about the pandemic. “But I can’t actually click on any search results to read more,” Moien said. On WhatsApp, the Facebook-owned instant messaging app that most Indians use to communicate, most information about the pandemic comes through charts and videos that are impossible to download over the slowed-down 4G networks, according to Moien. “It’s a catastrophe,” he said.

Some authorities have been uploading video alerts to Twitter, but because of the restrictions, most locals can't see them. As a result they're being forced to get all of their information from local news outlets that seem largely interested in artificially inflating the accomplishments of regional politicians. In turn, rumors and dis/misinformation are spreading quickly via Whatsapp and word of mouth, with no ability for citizens to research and confirm the claims. As a result, the local population there doesn't understand the scope of the pandemic threat, and many lack access to information that could protect the region from harm.

Governments that engage in such heavy-handed internet censorship and filtering may feel like they're in control, but this is yet another example of how such ham-fisted restrictions actively undermine society as a whole.

Filed Under: covid-19, india, kashmir, misinformation

Fighting For Better Anti-SLAPP Laws: I'm Joining The Board Of The Public Participation Project

from the because-free-speech-matters dept

Anyone who's read Techdirt for any length of time knows that I've spent years fighting for better anti-SLAPP laws at both the state and federal level. You may remember my public talk about the importance of anti-SLAPP's using the lawsuit against myself as an example, though my fighting for better anti-SLAPP laws dates back way before that event. Or, if you want a more humorous take on SLAPP lawsuits and the need for anti-SLAPP laws, you can check out John Oliver's clever take on the issue:

In short, SLAPP lawsuits are "Strategic Lawsuits Against Public Participation." These are lawsuits -- generally defamation lawsuits -- that target someone's speech, not because the lawsuits have any chance of succeeding, but just because the filer knows that the lawsuit itself is a huge hassle, in terms of time, money, and attention, for those on the receiving end. What a good anti-SLAPP law does is threefold:

1. It shifts the burden quickly to the plaintiff to prove they have a viable case. This is important. Legitimate cases are not stopped by anti-SLAPP laws.
2. It makes it easier for the court to then dismiss frivolous SLAPP suits quickly, hopefully reducing the hassle aspect of such lawsuits.
3. It awards attorneys' fees to the defendant, hopefully reducing the cost of facing such a lawsuits, and providing stronger incentives against potential filers of SLAPP suits.

Unfortunately, only a little more than half of all states have an anti-SLAPP law, and there is no federal anti-SLAPP law. Also, multiple circuits have decided that state anti-SLAPP laws should not be used in federal court (multiple circuits have gone the other way as well). Even among states that do have anti-SLAPP laws, they can vary widely from state to state in terms of what they cover, how they work, and how effective they are.

To sum it up: the state of anti-SLAPP laws is a mess, and it's allowing powerful people to create real chilling effects and tie up critics and commentators with bogus, expensive, lawsuits.

For years, now, the non-profit Public Participation Project has been fighting to get better state anti-SLAPP laws passed and to get a federal anti-SLAPP law in place. They also keep track of the details of what states have anti-SLAPP laws, what they cover, and how various litigation around anti-SLAPP laws has turned out.

I've admired and relied on its work for years, and that's why I was delighted this week to agree to join the board of the Public Participation Project, and help the organization fight for better anti-SLAPP laws to protect everyone's right to free speech, and against abusive, censorious, litigation that makes a mockery of the 1st Amendment and freedom of expression.

Filed Under: 1st amendment, anti-slapp, federal anti-slapp, free speech, slapp, slapp suits
Companies: public participation project

Bad Ideas: Newark Stupidly Threatens 'Criminal Prosecution' Against Anyone Who Reports 'False' Info About Covid-19

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

Look, I totally understand the very valid concerns that many people have about the spreading of false or misleading information regarding Covid-19. There are plenty of reports about misinformation spreading, especially via social media. Indeed, there are reports on the lengths to which various social media platforms are trying to crack down on all that misinformation -- a noble goal, though plenty will inevitably get through. This is the very nature of content moderation.

So, I can understand why public officials are concerned about how the spread of misinformation could be a real problem. But if you want a masterclass in how not to deal with the problem of misinformation about the coronavirus, look no further than Newark, New Jersey, where Public Safety Director Anthony Ambrose has put out a statement that is both dangerous and unconstitutional at the same time (quite a twofer). I'm posting a screenshot in the expectation (hope?) someone will realize just how bad this is and remove it. It says that anyone who posts false information about the coronavirus will face "criminal prosecution."

If you can't see that, it says:

Public Safety Director Ambrose warns against false reporting of coronavirus in Newark via social media

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

“Any false reporting of the coronavirus in our city will result in criminal prosecution,” Director Ambrose said. “We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed.”

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

“The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws,” Ambrose said. “Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods,” he added.

I'm debating whether to detail first why it's dumb or why it's unconstitutional, but let's start with dumb. Threatening to criminally prosecute someone for providing "false" information is very, very likely to chill the reporting of accurate and useful information out of a fear that if it's "false" the person will face criminal prosecution. Just last month we highlighted how China's similar "crackdown" on "untruthful information" silenced the doctor who first raised the alarm about the coronavirus. If he had been able to actually get out the word faster, perhaps we wouldn't be facing such a global crisis.

Second, this is blatantly unconstitutional. The argument that this violates New Jersey's laws against "a false public alarm" is nonsense. The law in question, NJ Rev Stat § 2C:33-3 (2014) already seems to have some constitutional issues, but is targeted at people calling in a fake bomb scare or something along those lines:

... a person is guilty of a crime of the third degree if he initiates or circulates a report or warning of an impending fire, explosion, bombing, crime, catastrophe or emergency knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm. A person is guilty of a crime of the third degree if he knowingly causes such false alarm to be transmitted to or within any organization, official or volunteer, for dealing with emergencies involving danger to life or property.

That's very different than merely posting false information online. Such information wouldn't be intended to cause evacuation or some other form of panic. There is simply no way in which a court would find merely posting false information about Covid-19 as a criminal matter. The 1st Amendment would easily block such an action.

One hopes that someone explains not just the 1st Amendment to Public Safety Director Ambrose, but also the importance of letting people share information and not scaring them off from providing valuable information in a time of need.

Filed Under: 1st amendment, anthony ambrose, china, disinformation, free speech, information sharing, misinformation, new jersey, newark

Lt. Governor Of Texas Gets Offended By An Anti-Police Shirt, Decides He Needs To Start Violating The First Amendment

from the fuck-the-drafting-of-residents-into-Dan-Patrick's-war-over-words dept

Another challenger to the First Amendment has appeared. And his name is Dan Patrick, Lieutenant Governor of Texas.

Apparently offended by a Senate hearing witness garbed in an anti-police t-shirt, the Lt. Governor welcomed all challengers via Twitter to sue him for violating people's free speech rights.

In case you can't see the tweet, it says:

Outraged to see this T-shirt at a Senate Hearing Thur. Future witnesses beware. No one will ever be allowed to wear such a vulgar shirt in a Senate hearing again-especially one that denigrates the brave men & women of law enforcement. Want to take me to court? Ok. Make my day.

If you can't see the shirt (and you can't, because Dan Patrick blurred out the offending words/images), it's a hand with the middle finger extended above the phrase "Fuck the police."

Clearly of the belief that Supreme Court precedent almost exactly on point has no bearing on Texas Senate proceedings, the state's second-in-command has promised to ban any t-shirt he subjectively feels is "vulgar," but "especially" the ones that "denigrate" law enforcement.

The Supreme Court precedent -- delivered nearly 50 years ago -- dealt with a 30-day jail term given to a courthouse attendee who wore a "Fuck the Draft" jacket. That clearly denigrated the brave men and women who decided who was eligible to go die for their country in the United States' most infamous losing effort. The Supreme Court ruled that the government violated the First Amendment by demanding citizens only wear/make the most innocuous of statements while in the government's presence.

Patrick's proposal sounds exactly like a content-based ban on speech, which is exactly the sort of thing the First Amendment guards against. But there are those who believe time-and-place restrictions could allow Patrick's ban to bypass the First Amendment. Why? Because the state legislature can do whatever the hell it wants, apparently.

Chuck DeVore, vice president of the Texas Public Policy Foundation, a conservative think tank based in Austin, disagrees with Patrick’s critics.

Legislative chambers, DeVore said, have the power to set their own rules of decorum as a co-equal branch of government. While the courts have the power to review laws passed by a legislature, they cannot tell lawmakers how to pass those laws or run their affairs, he said.

Well, that assertion aside, the desire to ban things that offend one government official sure sounds like something a court should rule on. The Lieutenant Governor is on (Twitter) record as welcoming legal challenges to his "won't someone think of the cops?" content-based restriction. These are the oh-so-brave words of a man willing to spend other people's money to defend a move many of those people likely don't agree with. That's the luxury legislators have: the ability to force people to defend indefensible positions by proxy (but also directly via their tax dollars).

At some point, Patrick and his stupid new rule triggered by his triggering will have their day in court. And it seems highly unlikely he'll prevail. When he's done blowing money on forcing the public to respect cops, maybe the state's residents will be kind enough to vote his censorial ass out of office. Until then, the lieutenant governor will remain dissed like the cops he loves so much that he's willing to violate the Constitution for them.

Filed Under: 1st amendment, dan patrick, free speech, fuck the police, texas