The Rorshach Test Of The Covington Catholic Boy's DC Encounter Now Extends To Bogus Lawsuits And Confidential Settlements

from the everyone-sees-what-they-want-to-see dept

Buckle up folks, because this story takes a few twists and turns, and some of them may make you angry -- though I hope people will hold back their kneejerk reactions, because that kind of thing is what created this mess in the first place.

As you probably recall, a year ago, there was a whole viral media shitstorm regarding an encounter in Washington DC between some kids from Covington Catholic High School in Kentucky, Native American activist Nathan Phillips, and a bunch of other people, including members of a group known as the Black Israelites, who appeared to be egging everyone on. A first video that made the viral rounds on Twitter just showed the encounter between CCH student Nick Sandmann, clad in a red MAGA hat, and staring down Phillips who was banging a drum. Later videos added in more context, including the Black Israelites and their role in the whole thing. One of the points a few people raised is that your interpretation of the whole thing is very much a Rorschach test for what you already believe. You can reasonably argue that people completely misrepresented the encounter and you can reasonably argue that they did not.

It is a subjective issue. You see it through your own context and experiences, and it comes down to each and everyone's opinion. I'd personally argue that there was a little bit of truth in nearly all of the viewpoints, and not having the entire context is not akin to false statements, but rather simply not having the full picture. As more context was added, many people changed their views, and that's cool too.

But given that these are subjective opinions, the idea that one might sue over them is simply batshit insane. And yet, people rushed to sue. In particular, we highlighted how the CCH student at the center of all of this sued the Washington Post, and later both NBC and CNN, for their coverage. Sandmann was represented by L. Lin Wood and Todd McMurtry. (For what it's worth, Wood recently lost that high profile defamation case against Elon Musk on behalf of cave diver Vern Unsworth). We found little in the lawsuits to be compelling, and were not at all surprised when a judge tossed out the one against the Washington Post, noting that everything they published was protected by the 1st Amendment. However, that case has been reinstated on fairly narrow grounds, following an amended complaint that targets some very specific language used by the Post. I'd still be surprised if he won, but the more narrow claims do at least have slightly more validity to them, especially if the court agrees that Sandmann is not a public figure (which would lower the bar for a defamation claim).

Earlier this week, news broke that CNN and Sandmann had agreed to settle that complaint -- and once again we had a bit of a Rorschach test. The terms of the settlement appear to be totally confidential, which is disappointing, but not at all uncommon. It is, in fact, possible that no money exchanged hands at all. However, many people who support Sandmann are insisting that this is vindication for him, even if that's not at all clear. Some are even saying that CNN must have paid "in the millions." Again, no information on the settlement is public, and to say that this was vindication or to speculate on any settlement amount seems ridiculous -- especially given that the entire thrust of the lawsuit was about news media commenting on issues without knowing the full details or context of the story.

But the story then got even stranger. Because on Wednesday, PJ Media had a headline trumpeting that author Reza Aslan would "face the music" for tweeting that Sandmann had "a punchable face." Already that should have raised alarm bells, because there is literally nothing at all defamatory in saying someone has "a punchable face." PJ Media -- who at times pretends to support free speech -- acted as though this was a legitimate lawsuit. Of course, tellingly, even though they said they had a copy of the complaint, reporter Tyler O'Neil did not link to or publish the lawsuit. Perhaps because it's utter and complete garbage. You can read it here.

It was actually filed last August. And here's where we'll go back a bit. Right after the original Sandmann incident, we had noted that infamously silly lawyer Robert Barnes, who has filed multiple trollish lawsuits that have flopped spectacularly, announced that he would represent any of the Covington kids pro bono in filing lawsuits.

Yet, you will note that Sandmann's lawsuits were not filed with Barnes as his lawyer, but Lin Wood and Todd McMurtry. However, the lawsuit that PJ Media was trumpeting, about a comment on Sandmann, was filed by Barnes. So this lead to some head scratching. Had Sandmann retained both lawyers for different cases? The answer is no. Barnes simply filed lawsuits on behalf of the Covington kids as John Does.

It's not even clear that any of the Covington kids are actual clients of his. They may be, but the filing doesn't confirm that this is actually true. And the key Covington kid, Sandmann, has made it absolutely clear that he is not a Barnes' client, and that this lawsuit is obviously bullshit -- because with regards to Aslan's statement, it only references Sandmann (and his allegedly "punchable face") rather than any of the other Covington kids:

If you're unable to see that image, it's Sandmann asking Barnes on Twitter:

... would you like to explain why you’re suing for me without my permission? You’ve blocked my lawyers on twitter and now claim you’re suing over the Reza Aslan tweet? Retract and stop lying to the public.

Yes. Barnes can claim all he wants that he’s filed it on behalf of the covington kids but we both know that isn’t true. Reza’s tweet references only one kid, and i take up a majority of the picture. The article he even linked (now deleted) stated this.

It clearly states it’s about me in the title!

And we're not done with the strangeness yet. The lawsuit itself was filed last August. So why was it making news now? Because Aslan just deleted that tweet. Why did he just delete that tweet now, a year later? Because Barnes only just now served Aslan:

It's unclear why Aslan even bothered to delete the tweet, other than perhaps a kneejerk reaction upon being served. There's nothing defamatory at all in what he said. The lawsuit itself is ridiculous. Beyond Aslan, there are a bunch of other plaintiffs who merely stated various opinions about Sandmann (mostly, rather than the supposed "John Does"). Aslan's co-defendants include Elizabeth Warren, who tweeted "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better." What's defamatory about that? Barnes' suit claims that she "omitted the true facts." But that's not how defamation works. Other defendants include NY Times reporter Maggie Haberman, ABC News commentator Matthew Dowd, Mother Jones Editor-in-Chief Clara Jeffery, historian Kevin Kruse and more. None of what any of them said was defamatory.

And, again, the entire lawsuit is completely laughable, and it's not even clear who Barnes' clients really are. Yet, when PJ Media (and Barnes) framed it in a way that suggested to people that the lawsuit against Aslan (who supposedly is going to "face the music") was on behalf of Sandmann, the Rorschach test continued, with tons and tons of Sandmann's supporters cheering on a nonsense lawsuit. Indeed, some of the commentators even appear to believe that the CNN settlement was done by Barnes:

It goes on like that for a lot longer, but you get the idea. Notice that basically all of them are doing exactly what Barnes and Sandmann/Wood/McMurtry are suing over: commenting enthusiastically about a story where they only know a small piece of the details, and possibly have the large crux of the situation wrong. Particularly silly is that many of those commenters egging on a completely bogus attack on free speech pretend to be "free speech supporters."

And, of course, then Sandmann's actual lawyer Lin Wood had to go on Twitter and demand that Barnes cease and "correct his prior false statements." It includes what appears to be a threat to take legal action:

Again, here's the text if you can't view the screenshot:

Nicholas Sandmann has many legitimate defamation cases remaining for resolution through litigation. @ToddMcMurtry & I prefer to focus on those matters & not be forced to take legal action against another lawyer but Robert E. Barnes crosses line with his claims about Nicholas.

Barnes has been previously warned to stop publicly suggesting or stating that he represents Nicholas. In response, Barnes “blocked” @ToddMcMurtry & me on Twitter. Barnes apparently cannot control his desire to garner publicity by falsely using Nicholas’ name.

For those who can access @Barnes_Law & support his legal efforts for others, please remind him that he cannot “block” a formal demand letter, a civil complaint, or an ethics complaint. I hope he finally gets the message.

If Barnes does not cease publishing & then correct his prior false statements, Nicholas’ attorneys are fully prepared to take legal action against him. So Barnes can take the easy way out or he will get out the hard way - we will sue him. His choice.

Later, Wood (hilariously) claimed that Barnes is "on the right side of CovCath issue." Which, uh, no.

But, once again, this is all a form of a Rorschach test, and everyone seems to view the story through their own particular prism -- as did all of the initial commenters that Wood/Sandmann/Barnes/whoever are suing. And that's why all of those lawsuits are such bullshit. People reacting to news is not defamation. People not having the full context is not defamation. People expressing their opinion, or explaining how they view things, is not defamation. And the people who have responded to all of the news this week are doing exactly the same thing they seem to think others should be sued over.

So, maybe, just maybe, the best thing here would be stop filing so many bullshit defamation lawsuits, and recognize that free speech sometimes includes speech we don't like, and that includes people not fully understanding the context. But, of course, that's not going to happen. Indeed, Sandmann's other lawyer, Todd McMurtry has instead promised to get back to suing more people:

Sigh.

Filed Under: 1st amendment, cch, covington catholic high school, defamation, elizabeth warren, free speech, l. lin wood, lin wood, nathan phillips, nick sandmann, opinions, resa aslan, robert barnes, rorschach test, todd mcmurtry
Companies: cnn, nbc, washington post

Connecticut Cop Sues Local Blogger To Get Him To Turn Over Personal Info On Commenters Who Said Thing The Cop Didn't Like

from the ignorance-of-the-law-is-going-to-get-your-civil-suit-tossed dept

A Connecticut cop, who doesn't like the things commenters said about him on a local blog, has decided he's legally in the right to demand the identifying info of those commenters from the person who runs the blog.

Hartford police Lt. Vincent Benvenuto has filed a lawsuit in state court against Kevin Brookman, a Hartford resident who runs the popular We The People Hartford blog, seeking the identities of people who post comments.

The lawsuit does not seek money damages, but does seek to know who is posting anonymously on Brookman’s blog, said Benvenuto’s lawyer, Patrick Tomasiewicz.

“It’s a pre-suit discovery petition to try to determine what the source is or who the sources are of disparaging and defamatory comments made against Lt. Benvenuto," Tomasiewicz said.

The "Bill of Discovery" [PDF] lists a lot of things that sound like protected speech, rather than defamation. There's a long list of comments Lt. Benvenuto takes offense at, but a lot of commenters (who Benvenuto insists are actually other cops) making opinionated statements isn't the best foundation for a libel lawsuit.

a. An August 5, 2019 thread disparaging the Plaintiff in a discussion regarding an ongoing HPD investigation;

b. An August 28,2019 thread accusing the Plaintiff of sleeping during his shift and appearing to accuse the same of impropriety regarding the use of his official vehicle;

c. An August 29, 2019 comment accusing the Plaintiff of inappropriately leaking police information;

d. An October 2, 2019 thread attacking the Plaintiffs ability to lead other officers, accusing the Plaintiff of making racist comments towards another officer, and accusing the Plaintiff of ignoring the racist comments made by subordinate officers;

e. An October 2, 2019 comment making unsubstantiated comments regarding the Plaintiff s job performance while working with the NYPD, and alleging that "[the Plaintiff] was racist so they kept him out of queens [sic] and Bronx;"

f. An October 18, 2019 comment stating, "All HPD Officers have been ordered not to read your blog by members of the Command Staff, Chief Thody included;"

g. An October 21, 2019 comment alleging that the Plaintiff has threatened to cut the Defendant's throat, and characterizing the Plaintiff as "a complete disgrace to the badge;"

h. An October 21, 2019 comment where an anonymous user of the Blog posted using the name "Lt. Vincent Benvenuto" in which the anonymous user impersonated the Plaintiff and stated that his promotion to Lieutenant was not based on merit.

So, the usual internet stuff. Some of this could possibly be actionable, but it seems unlikely much of what's listed here will withstand judicial scrutiny if it ever gets that far.

What's even weirder is Lt. Benvenuto spends most of the run time of the Bill of Discovery alleging that the comments violate the Hartford PD's code of conduct. I'm not even sure why he would bring that up. If these commenters are other cops and they are violating PD rules, then it's up to the department to punish them, not a local court. I'm pretty sure no PD official advised the lieutenant to file a civil suit because he thought some cops might be violating the house rules.

Even if one was inclined to think this potential suit has merit, the Bill of Discovery targets someone for comments other people made. State and federal protections are going to make it very difficult (and rightfully so) for Benvenuto to move forward with his discovery request.

First, state protections for journalists likely cover Kevin Brookman and his long-running blog. He cannot be forced to divulge personal information on commenters or sources unless Lt. Benvenuto can prove the information cannot be obtained from any other source and that there's an overriding public interest in the disclosure. Simply wanting it so he can get to suing commenters isn't enough to meet that bar. The state law doesn't say it specifically covers bloggers, but Goodman's blog has been active since 2008, covering matters of interest to the public like local politics and -- obviously -- local law enforcement.

Section 230 also protects Brookman against litigation. While it's true Benvenuto isn't suing Brookman over the comments he feels are defamatory, he's forcing him to respond in court to a baseless demand for user info. If Benvenuto wants to sue a bunch of Does, he can do that and make his discovery attempt at the appropriate time. Dragging a blog into this prior to commencing a lawsuit gets everything backwards by demanding the host of third-party content hand over identifying info before it's even been determined his case has enough validity to move past an initial reading by a judge.

Lt. Benvenuto pre-lawsuit tactics aren't going to endear him to the general public, much less the commenters at the "We the People" blog. You can't sue your way into respectability, especially when you take a route that drives right through the First Amendment as if it isn't even there.

Filed Under: 1st amendment, connecticut, free speech, hartford, hartford police, kevin brookman, police, vincent benvenuto

Turkey Continues Its Attempt To Pass China In The 'Most Journalists Jailed' Category

from the WEEEEEEEEEE-ARE-THE-CHAMPIONNNNNNNNS-MY-FRIEND dept

Turkey continues to be awful. The President of the country, Recep "Gollum" Erdogan, continues to fight his own personal brand of "War on Terror." So far, this "war" is mostly on critics and journalists, since actual terrorism isn't something Erdogan seems to care about as much as his own reputation.

Critics located all over the world have felt the proxy wrath of the frequently-besmirched PM. Some countries have been especially obliging, turning over their own citizens to face criminal charges for insulting the Turkish head of state.

Journalists all over the world are feeling the heel of Erdogan's boot, the size of which is inversely proportional to the thickness of his skin. Rather than limit his censorial efforts to the war at home, Erdogan frequently calls on US tech companies to engage in censorship on his behalf. Twitter is a favorite.

You're nothing if you're not on the leader boards. Erdogan sees himself as a living superlative. So it's no surprise his government is seeking to overtake the Red Granddaddy of Censorship -- China -- in the category of "Most Journalist Jailed." Presumably, the Guinness people will just mail him his award, rather than risk being swept up in his "War on Terror" for listing Nobel Prize winners or whatever.

More journalists have been convicted of crimes against Herr Erdogan. Unfortunately for the authoritarian, not too many of them will actually be jailed, which isn't going to help him overtake China in the jailed journalist race. Prosecution in absentia is the new normal for Turkey since local journalists have realized staying in the country means forced retirement from their chosen profession.

Alert Interpol, I guess, as though that international partnership is really interested in converting itself into an extension of Turkey's government. The "War on Terror" continues, with Turkish courts fighting the war at home by sentencing journalists self-exiling abroad.

A Turkish court on Friday convicted six journalists and one other employee of an independent newspaper of aiding the network of a U.S.-based cleric who is accused of masterminding the failed coup in 2016, the state-run news agency reported.

Conjecture and hearsay are kinds of evidence, the Turkish lawyers certainly argued. Some of those sentenced will actually be headed to jail post-appeal, since there's no reason to believe this kangaroo courtship will be annulled upon further review.

Others will just spend their sentences not living in Turkey, as the supposed coup "mastermind" is doing.

[T]he primary target of Erdogan's wrath is Fethullah Gulen, an Islamic scholar in his late 70s living in exile in the United States. Erdogan blames Gulen for masterminding the failed coup attempt. The government has declared Gulen's movement a terrorist organization.

Jailing someone in their late-70s seems unusually cruel. (We do it here so stop throwing stones.) But it's just not going to happen as long as Gulen lives in the United States. Anyone with any connection to Gulen is being branded a terrorist, even if most of them are just journalists who had nothing to do with the failed coup that has led directly to the jailing of over 100 journalists.

Criticizing Erdogan from abroad really doesn't do much to diminish his power at home. But it does keep him busy. It keeps his courts tied up trying cases of suspects the government can never jail and it keeps the busybodies in the censorship department active filing social media complaints. Now, if only we (the US and its tech companies) weren't so eager to help...

Filed Under: free press, free speech, intimidation, jailing, journalists, recep tayyip erdogan, turkey

Chinese Skiers Training In Norway Ask Local Library To Remove 'Controversial' Books

from the purely-for-your-own-protection dept

The increasing economic, political, and military power of China is evident. Less obvious is how China and its citizens are starting to impose their views and rules on other nations in more subtle ways. For example, in February last year, Techdirt wrote about how China is actively censoring books written by Australian authors for Australian readers. The Norway Today site reports on the latest attempt by Chinese citizens to censor material in other countries. It involves a delegation of more than 40 Chinese cross-country skiers, along with 15 coaches and managers, who are in the Norwegian municipality of Meråker to train for the Beijing 2022 Winter Olympics:

in recent weeks there have been three incidents concerning Chinese literature at the library in Meråker. Among the books the delegation wanted removed is one about the Falun Gong movement that has been banned in China since 1999.

The reason for the Chinese attempt to censor a Norwegian local library is interesting:

"They have said that if any of the Chinese skiers are caught with these books, they are afraid that they would risk being sent to labor camp or prison in China," [library manager Anne] Marken told the newspaper.

To Marken's credit, the library has refused categorically to remove any books: "We have freedom of speech in Norway so that was completely out of the question." It's only a small incident, easily overlooked. But if it can happen in a tiny local library in the depths of Norway, just because a few Chinese skiers were training there, it is highly likely to start happening in other places, where more Chinese citizens are present, and where China has greater economic and political influence.

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

Filed Under: book banning, censorship, china, free speech, norway, skiiers

Devin Nunes Libel Tourism Continues To Highlight The Problems Of Virginia's Weak Anti-SLAPP Laws

from the something-good-can-come-of-this dept

We've talked a bunch about how Rep. Devin Nunes' ongoing series of SLAPP lawsuits, nearly all of which are in Virginia, have really served to highlight the nature of libel tourism in the US today, and in particular how plaintiffs and lawyers go hunting for jurisdictions with weak or non-existent anti-SLAPP laws. We already mentioned that Nunes's series of lawsuits has convinced at least some Virginia legislators that it's time to beef up Virginia's anti-SLAPP law, but as the Washington Post recently noted, it's also driving home how the rich and powerful engage in libel tourism by picking venues like Virginia to cause more trouble for those they sue.

Rep. Devin Nunes of California was angered by a story in his hometown newspaper detailing a claim that investors in a winery he partly owns partied with cocaine and prostitutes. So the Republican decided to sue — in rural Virginia.

Nunes bypassed the courthouse less than two miles from one of his offices and 10 blocks from the Fresno Bee to file the $150 million defamation claim against its owner 2,600 miles away. He also chose the Old Dominion to file two other recent defamation suits, one naming San Francisco-based Twitter and an anonymous user who has mocked him in the voice of an imaginary cow.

Why didn't he sue in California (where he's from and where the defendant newspaper was from)? Because, duh:

California’s anti-SLAPP law allows defendants to file a special motion at the outset of litigation if they feel the lawsuit is without merit and aimed at chilling First Amendment rights on a topic of public interest. If a judge sides with the defendant, the plaintiff is required to pay the defendant’s legal fees.

Virginia has an anti-SLAPP law, but there is no special motion provision and defendants are not guaranteed legal fees if a case is dismissed. The practical effect, experts say, is that cases can drag on until the sides begin to exchange evidence and a case goes to trial. That can mean months — or even years — of legal wrangling and hefty legal bills.

Indeed, the article notes that Virginia's anti-SLAPP law is effectively a dead letter:

“I really have not seen the anti-SLAPP in Virginia successfully applied,” said Jennifer Nelson, co-director of the University of Virginia School of Law’s First Amendment Clinic. “It does not seem to be working the way it was intended to.”

The article also notes that Johnny Depp filed a defamation lawsuit in Virginia as well, and questions why he chose that jurisdiction.

Likewise, actor Johnny Depp sued his ex-wife Amber Heard for $50 million in a Northern Virginia courthouse, claiming he was defamed in an op-ed in The Washington Post in which she called for support for domestic violence victims like herself. Both Depp and Heard live in Hollywood. Heard, who came to at least one hearing in the case, said in court filings that she had never previously set foot in the state.

But, it does appear that Virginia's reputation as a place for filing bogus SLAPP suits is getting more and more attention among lawmakers there:

The lawsuits have caught the attention of Virginia legislators. Del. Schuyler T. Van Valkenburg (D-Henrico) is preparing a bill for the state’s next legislative session in January that would seek to put its anti-SLAPP law on par with California’s. Defendants would have the opportunity to file a motion to dismiss a case early in litigation if they feel it is frivolous and, if successful, could recover fees from the plaintiff.

“If you have a democracy that works for people, the main thing we can do is make sure everyone has the ability to participate on an equal footing,” VanValkenburg said.

If so, that would be the one good thing coming from these Nunes lawsuits.

Filed Under: anti-slapp, devin nunes, johnny depp, libel tourism, slapp, virginia

Minnesota Appeals Court Nukes State's Broadly-Written Revenge Porn Law

from the make-better-laws,-lawmakers dept

Revenge porn laws generally aren't built to last. When crafting these laws, legislators tend to lose sight of the Constitution. Everyone agrees revenge porn is bad, but simply being in agreement isn't enough when rights are on the line.

Minnesota passed a revenge porn law in 2016. The law barely made it three years before being found unconstitutional by a state court. As usual, the legislature's inability (or refusal) to narrowly craft a speech restriction has come back to haunt it. KARE 11 reports the state Court of Appeals has undone the Constitutional damage caused by the state's poorly-written law.

Minnesota's law against revenge porn is unconstitutional and infringes on First Amendment rights, the state Court of Appeals ruled Monday as it reversed the conviction of a man who circulated explicit photos of a former girlfriend.

The court ruled that the state law was such a broad violation of First Amendment free-speech rights that it couldn't be fixed by a ruling limiting its scope.

The case deals with Michael Casillas, who used the victim's passwords to access her accounts to obtain her sexual photos and videos. Casillas threatened to release them. And then he did, sharing one video with an unknown number of people by posting it online.

Casillas was charged and sentenced to 23 months in prison. He appealed, challenging the law that put him there. He has succeeded for now. (The state is already planning to appeal this to the state's Supreme Court.) The appeals court doesn't like Casillas, but it also doesn't like the law. And when it comes to the Constitution, personal distaste for a person's actions is no excuse for violating free speech rights.

The decision [PDF] says the law is too broad to remain on the books.

In sum, Minn. Stat. § 617.261 covers a wide range of expressive conduct. It covers the dissemination of a sexual image with knowledge that the person depicted in the image did not consent to the dissemination and that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy. But it also covers the dissemination of a sexual image even if the disseminator did not know that the subject of the image did not consent to the dissemination, did not know that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy, and did not cause or intend to cause a specified harm. Given the statute’s application to the latter set of circumstances, its sweep is broad.

The state hoped to salvage its conviction by claiming that the image distributed non-consensually was obscene -- something laws can target without troubling the First Amendment as much. The court disagrees.

The state appears to argue that any image of another person who is depicted in a sexual act or whose intimate parts are exposed portrays sexual conduct in a patently offensive way if the image is disseminated without the subject’s consent. Although we agree that such nonconsensual dissemination is offensive, that is not the test for determining whether a work is obscene.

The state also tried to claim the law actually regulated privacy, rather than speech. Wrong, says the court, even if -- for the sake of argument -- we pretend that you're right.

The state also contends that Minn. Stat. § 617.261 does not implicate the First Amendment because it is a privacy regulation. But privacy is not one of the recognized “delineated categories” of speech excepted from First Amendment protection.

The court agrees the state has a legitimate interest in deterring the distribution of revenge porn. But a broadly-worded law that criminalizes certain conduct without requiring the government to prove intent is highly-problematic. It's not enough to say someone should know this speech would "harass" or "frighten" other people. The state has to prove the person engaging in this speech knew this would happen and did it anyway. The state's revenge porn law does not do that. The court notes similar laws covering "disturbing" speech have been struck down in the past by the state's top court, both because the intent clause wasn't limited enough and requirements the state show the victim had suffered actual harm nonexistent.

There's no inherent expectation of privacy in sexually-explicit images, says the court. Just because they're explicit doesn't make them private. The court points out demonstrators and activists have often pushed for the distribution of their own sexually-explicit images to make sociopolitical points. The wide open give-and-take of internet communications makes it impossible to draw a bright line on expectations of privacy -- something the law takes for granted by saying that if it's explicit, it's private.

An observer of an image on a publicly available medium that depicts a person in a sexual act, or whose intimate parts are exposed, would be wise to refrain from further disseminating that image or risk criminal prosecution under Minn. Stat. § 617.261 based on a prosecutor’s subjective belief that the image’s content should have caused the observer to know that the person depicted did not consent to the dissemination and that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy. And that risk exists even though such images are often present on publicly available mediums with the consent of the people depicted

The government's evidentiary duties are pretty much removed by this law, making it far too easy to punish protected expression while still following the letter of the law.

Given the ease with which impermissible disseminations under the statute may be further disseminated without the intent to harm necessary to proscribe expressive conduct without violating the First Amendment, we conclude that Minn. Stat. § 617.261 has the potential to reach a substantial amount of protected expressive conduct.

The law can't be salvaged. It has to be stricken from the books and new legislation crafted to replace it -- legislation that actually respects the First Amendment. This doesn't excuse Casillas' behavior. But the court isn't willing to sacrifice the Constitution to punish someone for being an asshole.

Our holding in no way changes our view that Casillas’s conduct in violation of Minn. Stat. § 617.261—of which he was convicted—is abhorrent. Nor should it be read as failing to appreciate the significant harm that the nonconsensual dissemination of private sexual images causes. The state legitimately seeks to punish that conduct. But the state cannot do so under a statute that is written too broadly and therefore violates the First Amendment.

You hate to see jerks win. But that doesn't mean anyone should be willing to punish a whole bunch of people just to ensure jerks can't escape justice. Separating people from their rights isn't justice. The state can still seek to punish people who traffic in revenge porn. But it will have to be whole lot more careful how it does it.

Filed Under: 1st amendment, free speech, minnesota, revenge port

UK Metropolitan Police Admit They've Finally Shelved 'Investigation' Into Journalists Who Reported On Snowden Docs

from the chilling-effects dept

It's well known that the UK doesn't have nearly as strong press protections as the US does, but it was still somewhat shocking to discover that the Metropolitan Police in London had opened an investigation into journalists who reported on the Snowden documents back in 2013. The Metropolitan Police had refused to confirm or deny such an investigation before finally acknowledging it in 2015.

However, Ryan Gallagher now reveals that the Met Police have declared the investigation "inactive" for the time being:

The Met told me in response to a recent Freedom of Information request that the investigation is "inactive pending further information being received." Since 2014, I've had several updates from the Met regarding the investigation, and this marks the first time that its status has changed from "ongoing." In November 2017, the Met stated that it was a "complex investigation and enquiries continue."

Even as such, this creates a huge chilling effect. It's one thing to argue that whistleblowers revealing details of illegal surveillance should face criminal investigation and charges -- it's another thing altogether to make the same argument for journalists who are merely reporting on the details of that leaked information. Even the mere suggestion of an investigation likely has the impact of scaring off many journalists from reporting on such evidence of malfeasance and illegality by the intelligence community.

While it's good to see that the Metropolitan Police have set the investigation to "inactive" for now, just the fact that they're still saying it might change "pending further information being received" still serves to act as a deterrent to continued reporting in the UK.

Filed Under: ed snowden, free speech, journalism, leaks, london, metropolitan police, national security, reporting, uk, whistleblowing

Washington Court Says Local Pot Dealers Can Hang Up Christmas Lights That Spell 'POT'

from the stop-telling-people-you-have-pot,-pot-sellers dept

Buying and selling marijuana is legal in the state of Washington. There are several limits placed on these acts, but it's pretty much the equivalent of alcohol. You have to be 21, can only buy a certain amount at a time, and can't smoke it in public or drive under the influence.

What's apparently illegal is playfully announcing your pot business sells pot using nothing but Christmas lights. (via Reason)

In 2017, Hashtag Cannabis in Redmond, Washington hung up some Christmas lights on the store that spelled out "P-O-T." Here's a really terrible photo of the contested display, taken from the county court's ruling on Hashtag's pot sign:

Ho ho ho now I have a gravity bong.

The local authorities -- the Washington Liquor and Cannabis board -- were not amused. The Board cited the store for violating restrictions on signage, claiming the string of Christmas lights exceeded the allowable size of 1,600 square inches by 2,300 square inches. It also said the sign was not "affixed" to the "permanent structure," which seems a little weird because lights have to be affixed to something and in this case it was the business' building. The Board also took issue with the word "POT" because it wasn't part of Hashtag Cannabis' business name.

Two years later, Hashtag Cannabis has struck a blow for the little guy with Christmas lights, a weed business, and maybe a little too much time on his hands. The ruling [PDF] says the state's regulations run afoul of state free speech protections, as well as the US Constitution.

The state argued its ban on POT in Christmas light form was crucial to the government's "substantial interest" in "curtailing minor children's interest in and exposure to the marijuana trade." Inarguably, this is a legitimate interest. However, the laws governing this speech aren't all that legitimate.

Though the State’s position rises above speculation and conjecture, the advertising restrictions have too many conflicting provisions to directly and materially advance the State’s substantial interest in preventing underage consumption of marijuana.

First, the court points out the law would allow a kid-enticing display of POT Christmas lights as long as it was a bit smaller.

As to content, at argument, counsel for the State agreed that Hashtag could register the word Pot as a business or trade name and then display the word Pot on an otherwise-compliant sign in the store. It follows that, so long as the sign was permanently affixed, no larger than 1,600 square inches, and did not exceed the two-sign limit, it would be permissible.

More ridiculously, Hashtag Cannabis could have built a billboard right next to the store that was even bigger -- containing the same message -- and would not have violated the statute.

While the State argues that the restrictions in RCW 69.50.369(2) advance the State’s interest because they “minimize the risk of inordinately capturing the attention of children, youth, and young adults,” Respondent’s Answer at 11, other provisions in the regulatory scheme undermine the advancement of that goal. Hashtag could have a sign using the word Pot if it just registers that business or trade name, and it could conceivably have an entire billboard next door to its store with the word Pot.

None of this speech curtailment adds up to any meaningful attempt to steer kids away from pot.

If the State wishes to minimize the risk of capturing the attention of children, restricting retailers to two permanently-affixed signs displaying the business or trade name of no more than 1,600 square inches on premises, but allowing billboards off premises, and allowing retailers to register business or trade names such as Pot, does not directly advance that goal.

The county court doesn't say the whole law has to go. This is a very narrow ruling. But it's just wide enough to squeeze Hashtag's unorthodox Christmas light signage past it.

The Court’s ruling is limited to the on-premises content, size, and affixing restrictions applicable to marijuana retailers, set out in RCW 69.50.369(2) and WAC 314- 55-155(2)(a). The lawful sale of recreational marijuana is relatively new, and it is perhaps not surprising if there is not much research into the effect of advertising on potential underage consumers. The Board could not address the constitutionality of the advertising restrictions. This Court can only say that, on this record, as supplemented, the advertising restrictions violate the U.S. and Washington constitutions. The Court’s ruling does not eliminate all advertising restrictions or suggest a free-for-all.

Go wild with the lights, weed dealers. The county court has your back.

Filed Under: advertising, christmas lights, pot, washington
Companies: hashtag cannabis

Turkish Court Says Government's Two-Year Ban Of Wikipedia Violates Freedom Of Expression Rights

from the I-see-you've-made-your-ruling.-Now-let's-see-you-enforce-it. dept

The world's second-largest jailer of journalists -- Recep Erdogan's Turkish government -- has just been pushed back against ever so slightly by the country's Constitutional Court. The government's long-running ban of Wikipedia has been overturned, the Associated Press reports.

Turkey’s highest court on Thursday ruled in favor of Wikipedia, saying the Turkish government’s two-year ban on the online encyclopedia constitutes a violation of freedom of expression, the state-run news agency reported.

This ruling is somewhat of a surprise, given the authoritarian stance of the government. This ruling is also no-brainer, but one probably viewed by President Erdogan as redundant. Of course, it's a violation of free speech rights. That's what it was intended to be.

The government's ban of Wikipedia began in April 2017 when the site refused to remove content the Turkish government claimed was a "threat to national security." This included content suggesting Turkey's government supported ISIS and other terrorist groups. When Wikipedia refused to engage in censorship on the Turkish government's behalf, the government pulled the plug on all versions of Wikipedia.

Two years later, Jimmy Wales and Wikipedia petitioned the European Court of Human Rights, asking for a ruling reversing the ban and declaring it a violation of rights. Wikipedia has now secured a ruling doing these things, albeit from a court few people expected to side with the site. However, it may have been ECHR pressure that motivated this ruling. The ECHR expedited Wikipedia's case, giving the Turkish government until the end of 2019 to justify the ban.

Apparently, no justification has been found. But this is only the beginning. The court has made its ruling. But the only thing that does -- at least at this point -- is keep the ECHR from handing down yet another judgment against Turkey. Not that those rulings have had any effect on the way the Turkish government goes about its business.

The ECHR has ruled against Turkey more than any other country. Ankara routinely ignores verdicts, choosing instead to pay court-ordered fines.

If it can ignore the European court, it can certainly ignore its own Constitutional Court. The ban may never be lifted. Erdogan seems willing to keep cutting checks if it helps keep pesky constituents in line and the government firmly in control of the narrative.

Filed Under: ban, censorship, cjeu, eu, free speech, recep tayyip erdogan, site blocking, turkey, web block, wikipedia
Companies: wikimedia

Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

from the judiciary-once-again-asked-to-fix-stupid dept

Another case of nonexistent "customer confusion" is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] "Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans" law.

The law, written at the behest of meat and dairy lobbyists, claims customers are "confused" by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase "cauliflower rice." Why? Because Arkansas is home to the nation's largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don't contain meat.

That law is now on death's door, having been savaged by a federal judge calling bullshit on the state's willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there's no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky's use of words like "sausage," "kielbasa," "burger," and "ham" confuse consumers despite Tofurky also using words like "white quinoa," "all vegan," "plant-based," and a big "V" to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.

[...]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state's attempt to carve out exceptions to the First Amendment on behalf of favored industries.

“Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I'm writing it that way because that's the only way this is going to turn out. The state doesn't have a compelling argument up its sleeve that's going to reverse what's seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they're going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don't care who's donating to whose re-election campaign.

Filed Under: 1st amendment, arkansas, labels, meat, plan-based foods