Pro Tip: Don't Send A Completely Bogus Defamation Threat To A Website That Employs A Former ACLU Badass

from the just-a-suggestion dept

If you happen to recognize the name Jamie Lynn Crofts, it may be from the truly amazing amicus brief she filed two years ago in the nutty SLAPP lawsuit that coal boss Bob Murray filed against comedian John Oliver after Oliver did a (very funny) segment about coal and coal jobs that talked a fair bit about Bob Murray. Crofts, at the time working for the ACLU in West Virginia, filed an amicus brief that was truly wonderful to behold, including sections entitled "The Ridiculous Case at Hand" and "Anyone Can Legally Say "Eat Shit, Bob!" and "You Can't Sue People for Being Mean to You, Bob" and "You Can't Get a Court Order Telling the Press How to Cover Stories, Bob."

Anyway, it appears that Jamie has since moved on from the ACLU, and it appears that she's now regularly writing about legal issues for Wonkette, and doing a pretty damn good job of it as well, looking through her recent stories. I wish I'd known that before, as I would have followed her coverage much more closely. However, Jamie truly shines when dealing with bullshit censorial threats, and apparently the performance artists known as "Diamond and Silk" decided to send a laughably sketchy "cease and desist" letter to Wonkette over some of their coverage of Diamond and Silk and whatever it is that they do. Jamie's response is entitled In The Matter Of Diamond And Silk's Very Real Lawyer v. Wonkette: Bring It, Sh*thead, which maybe gives you a sense of the spirit of her reply.

Normally, in this space, we'd go through and highlight the absurdity of the threat letter, but, honestly, we can't do half as good a job as Jamie does (we probably couldn't do 20% as good a job). So you should go read the whole thing, but here's a snippet.

They gave us 24 hours to STOP THE BESMIRCHES, lest we FACE THE WRATH of the consummate professional who wrote this letter.

Libelizing and Slanderification!

Let's talk about how the law actually works, here. Here in the US of A, we have this little thing called the First Amendment. And because of it, you don't get to sue people for being mean to you. In fact, making fun of assholes is a proud American tradition, much like obesity and electing white supremacists.

Even private citizens can only sue for false statements of fact that harm their reputation. And for public figures, which Diamond and Silk unfortunately and undeniably are, it's a lot harder. Public figures have to show that any actual false statements were made "with actual malice."

It's a pretty basic thing in American law that you don't get to sue media organizations -- or mommybloggers -- just because you don't like what they have to say. The US Supreme Court has been pretty clear throughout the years that political speech, in particular, receives the most protection. That's because "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64 74-75 (1964).

What's really fun about the truth requirement is that it means you get to request documents from the other side and argue in court about whether or not the particular statements are, in fact, true. So if Calcite and Burlap actually sued us for this, one of the actual issues would be whether Wonderbitch really does hate them for being so dumb. And they'd have to show that their "reputation," such as it is, was harmed by what she wrote.

Discovery would be LIT.

Not only would we get to explore exactly how Quartz and Cotton-Poly Blend prop up white nationalism, we'd get to ask them why they think our articles are false and what kind of sketchy sources they get their money from.

I swear there's a lot more there and it just gets better and better and better. So go read it. And, yeah, maybe don't send a bogus legal threat letter to a site that employs a former ACLU 1st Amendment lawyer who is famous for filing a brief in court about how it's legal to say "Eat Shit, Bob!"

Filed Under: defamation, diamond and silk, jamie lynn crofts, threats
Companies: wonkette

Knight Institute Warns Rep. Ocasio-Cortez That She, Like Trump, Can't Block People On Twitter

from the as-noted dept

Earlier this summer, we wrote about the 2nd Circuit appeals court affirming a district court ruling against Donald Trump, saying that it's a 1st Amendment violation for him to block followers on Twitter. The reasoning in the decisions was a bit nuanced, but the short version is that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express. The four conditions do need to be met -- and the lower court at least noted that such public officials can still "mute" people. That is, the officials don't need to listen -- but they cannot limit access to the narrow public space that is created in response to their official social media posts.

Right after that ruling came down, we pointed out that someone had already sued Rep. Alexandria Ocasio-Cortez for blocking people on Twitter as well, and our analysis was that she certainly seemed to be violating the 1st Amendment in the same way as Trump was. Now, the Knight 1st Amendment Institute, which filed the initial lawsuit against Trump, has sent a letter to Ocasio-Cortez making the same point. This is interesting, because when the original lawsuit against AOC was filed, and the media requested comment from the Knight Institute, there was at least some hesitation, saying that they needed to look at all of the details. Now that the details have been explored, it appears that the Knight Institute has come to the same conclusion.

As the letter makes clear, the @AOC account meets all the criteria that the court required to say that blocking is not allowed. Apparently Ocasio-Cortez is trying to argue that the @AOC account is a personal account, and she had another more official account. But, as the Knight letter explains, that's not at all accurate:

Based on the facts as we understand them, the @AOC account is a “public forum” within the meaning of the First Amendment. You use the account as an extension of your office—to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues relating to government. Recently, for example, you used the account to discuss new “policy approaches we should consider wrt immigration,” and to ask the public, “[w]hat commissions would you want to see Congress establish?” The account is a digital forum in which you share your thoughts and decisions as a member of Congress, and in which members of the public directly engage with you and with one another about matters of public policy. Since you first took office, the number of users following the @AOC account has reached more than 5.2 million. Many of your tweets staking out positions on issues such as immigration, the environment, and impeachment have made headline news. The @AOC account is important to you as a legislator, to your constituents, and to others who seek to understand and influence your legislative decisions and priorities.

Multiple courts have held that public officials’ social media accounts constitute public forums when they are used in the way that you use the @AOC account, and they have made clear that public officials violate the First Amendment when they block users from these forums on the basis of viewpoint. Most relevant here, the U.S. Court of Appeals for the Second Circuit recently concluded that President Trump violated the First Amendment by blocking users from his Twitter account, @real- DonaldTrump, because “he disagree[d] with their speech.” In another recent case, the Fourth Circuit held that the chairperson of a local county board violated the First Amendment by blocking an individual from her Facebook page.

In pending litigation, your attorneys have argued that the @AOC account is not subject to the First Amendment because it is a personal account. As we have explained above, that characterization is incorrect. Further, while we understand that you have another account that is nominally your “official” one, the fact remains that you use the @AOC account as an extension of your office. Notably, the Second Circuit rejected President Trump’s argument that his account is a personal one even though he has other accounts—@POTUS and @WhiteHouse—that are nominally official. The Court wrote, “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

So far, AOC responded to this by saying that she's only blocking 20 accounts and that she's blocking them for "harassment," rather than viewpoint discrimination.

But, again, as the lower court said in the Trump case, the remedy there should be "muting," not blocking. I get that being a public figure on Twitter is not always fun -- and especially for polarizing political figures (which both Trump and Ocasio-Cortez undoubtedly are). And I get that it must suck to have assholes clog up your feed. I'm barely known and, while I use Twitter's block button sparingly, I have found it useful at times. But I'm not a publicly elected official using my account for official business as an elected politician. The fact that one of the accounts AOC is blocking is a media outlet, even one as ridiculous as The Daily Caller, only highlights the 1st Amendment concerns here.

I've seen some people supporting the case against Trump, but not supporting it against AOC (and I've also seen the reverse). In most cases, though, those opinions seem to be driven mainly by whether or not one feels politically aligned with one or the other politician. And, while I have seen some good faith arguments that "harassment" should be considered something different, there is a very slippery slope there. Put that into Trump's hands and he'll just as quickly claim that everyone who is criticizing him is "harassing" him as well. We have a 1st Amendment for a reason, and politicians on both sides of the traditional aisle should respect that.

Filed Under: 1st amendment, alexandria ocasio-cortez, donald trump, free speech, harassment, public officials, public spaces
Companies: knight institute

Indiana Appeals Court Decides Badmouthing A Cop On Facebook Is A Crime

from the more-authoritarianism-please dept

The Indiana Court of Appeals has handed down an opinion that says criticizing a police officer -- at least in this case -- is a criminal offense.

Constance McGuire's son died in police custody after his arrest, apparently of a meth overdose. (That lawsuit can be read here.) Shortly after this, McGuire posted several comments about the arresting officer. They were unpleasant and crude, but they were also the sort of anger you often see following the death of a loved one while they were in the nominal care of others.

The appeals court opinion [PDF] opens with direct quotes of McGuire's posts.

At some point, McGuire posted several statements on Facebook mentioning Officer Dodd. These statements were visible to over 1,000 people who were “friends” with McGuire on the social media platform. Officer Dodd was not within that group of people. However, a concerned citizen contacted Officer Dodd and passed along the statements. In those statements, McGuire asserted that Officer Dodd killed her son. She also said: “Yes he set my son up to die. He did do it and so did KPD so y’all better watch out for me cuz I’m coming for all of younand if u work n that Jail I’m comn for u to so u better watch out this mother is on a rampage and ready to shoot to kill.” Ex. 1.3 In one post, McGuire wrote: “Fuck Jeremy Dodd like I said he a whole bitch kill urself u bastard.” Id. At the end of the post, McGuire wrote: “Everyone share.” Id. McGuire also wrote: “FUCK KPD OFFICER JERemy DODD yes I said it loud and proud FUCK U PIG DO SUMTHN BITCH if u don’t know now u kno.” Id. McGuire also mentioned Officer Dodd and said that “when it comes to my kids anyone can get it.”

For this, she was charged and convicted of Harassment. The state statute defines that as:

“A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication . . . uses a computer network . . . or other form of electronic communication to . . . transmit an obscene message or indecent or profane words to a person . . . commits harassment, a Class B misdemeanor.”

McGuire argued she did not "transmit" her communications to Officer Dodd. He was never tagged in any posts and was only made aware of them when someone who had read the posts passed them on to the officer. While the posts contain some violent imagery ("kill urself," "this mother is on a rampage and ready to shoot to kill"), there's no evidence McGuire ever directly threatened Officer Dodd or ever intended to do anything more than vent on Facebook.

So, what she said wasn't a "true threat," which would have placed her speech outside of the First Amendment's protections. The state conceded as much. Not directly, but through its decision to pursue harassment charges, rather than intimidation charges.

The state's broadly-written harassment statute made this possible. The Indiana Appeals Court, unfortunately, sees nothing wrong with applying an overly-broad statute to protected speech. First, the court says the posts were indeed obscene because they contained profanity and the suggestion Officer Dodd end his own life. If the Appeals Court is going to consider profanity a violation of the state's harassment statute, social media users in this state are going to find it very hard to avoid breaking the law when complaining about other people online.

The court then applies a standard the state itself didn't use to find McGuire's speech unprotected by the First Amendment. McGuire wasn't charged with intimidation, which involves the use of threats. She was charged with harassment, which is a completely different thing. Despite that, the court finds the posts unprotected by declaring her speech threatening.

Here, McGuire engaged in some political expression in that parts of the posts concerned tragic events arising from a traffic stop involving Officer Dodd. Yet, McGuire also said she was “coming for” law enforcement and was “on a rampage and ready to shoot to kill.” Ex. 1. Moreover, McGuire repeatedly directed posts toward Officer Dodd and suggested that he commit suicide. We conclude, when viewed in context, the instant speech was not unambiguously political. This conclusion aligns with that of the trial court, which remarked that “there is a fine line between a [constitutional] right and harassment” and McGuire had “cross[ed] that line.” Tr. Vol. II at 32. Because the speech was not unambiguously political, we apply standard rationality review. See Whittington, 669 N.E.2d at 1370. Upon such review, we conclude the State—in electing to prosecute McGuire—could have reasonably concluded that the speech posed a threat to peace, safety, and well-being. See id. at 1371. Thus, the speech could be regulated without running afoul of Article 1, Section 9.

This is all completely backwards, according to the dissenting opinion. The application of a different standard to work around the state's overly-broad harassment statute does the state's work for it, allowing it to keep its harassment conviction while applying a "true threat" standard to McGuire's speech.

My colleagues assert that there is sufficient evidence that McGuire had “no intent of legitimate communication.” IND. CODE § 35-45-2-2(a). They also attempt to apply the “true threat” analysis to the facts of this case. However, I believe the State has fallen short of proving beyond a reasonable doubt that McGuire’s intent to communicate was not legitimate or that they were “indecent” or “profane.” I.C. § 35-45-2-2(a)(4)(B). In addition, the “true threat” analysis does not apply to this case because it applies to cases of intimidation, a statute which prohibits threats. Throughout this short bench trial, the State presented a case focused on proving that McGuire threatened Officer Dodd and that it was concerned that the “threats” might be carried out. While the concern may very well have been warranted, the State had a statute available to it designed to punish “true threats” against Officer Dodd. It could have charged McGuire with intimidation. I.C. § 35-45-2-1. Indiana’s intimidation statute prohibits persons from communicating threats. In fact, it specifically defines eight separate types of threats that may be prosecuted. I.C. § 35-45-2-1(d)(1)-(8). Instead, the State chose to prosecute McGuire under Indiana’s harassment statute; a statute that does not mention anywhere in its text the word “threat,” and a statute that does not define the statutory elements concerning what is “legitimate communication,” “indecent,” or “profane words.” I.C. § 35-45-2-2(a)(4)(B).

The dissent then points out the state's conviction relies on a broad statute that criminalizes a lot of protected speech. That it chose to go this route with criminal charges indicates it knew it couldn't actually make a case using the more narrowly-crafted law.

It is clear from the record that the State sought to prosecute McGuire because it was worried about whether her Facebook posts naming Officer Dodd would result in violence. While the State’s concern was warranted, we must still follow the law concerning First Amendment rights. It is well settled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447 (emphasis added). There was simply no evidence introduced at trial that McGuire’s Facebook posts were directed at producing imminent lawless action and that it was likely to occur.

[...]

If my colleagues believe that McGuire’s comments were a “true threat,” then they must acknowledge that the State’s concern was the intimidating nature of McGuire’s Facebook posts; in other words, the likelihood that she or someone else would carry out those threats. See Brandenburg, 395 U.S. at 447 (requiring proof that the threat of imminent lawless action was also likely to occur). Yet, the State’s decision to charge McGuire with harassment and not under Indiana’s intimidation statute is extremely telling about its own belief in the lack of evidence surrounding McGuire’s intent.

In short, the state knew it likely couldn't make intimidation charges stick, so it went with a law the dissent calls out as unconstitutional. The correct thing for the court to do was toss the charges and criticize the law. Instead, the majority decided to apply a standard lifted from another law to make the charges stick. Because it has done so, there's precedent on the books that will encourage government employees and officials to pursue harassment charges because someone has said mean things about them on social media. That may not have been the court's intent, but that's the outcome.

Filed Under: 1st amendment, constance mcguire, free speech, indiana, jeremy dodd

Hong Kong ISPs Refuse To Help China Censor The Internet

from the swimming-upstream dept

China's no stranger to censorship online, given it runs one of the most sophisticated internet censorship operations on the planet. Like many governments upset with the idea of free expression online, China has also long waged a war against VPNs and proxies that let the public bypass this ham-fisted techno-blockade.

But the repression and censorship China enacts within its core territories have been harder to implement in Hong Kong, where internet traffic isn't forced through China's massive censorship firewall. Case in point: when reports began circulating that China was considering censoring access to certain websites and services, the Hong Kong Internet Service Providers Association (HKISPA) issued a statement saying thanks but no thanks. A core complaint by the ISPs was the fact that the use of encryption and VPNs means that such efforts are largely pointless:

"Technically speaking, given the complexity of the modern Internet including technologies like VPN, cloud and cryptographies, it is impossible to effectively and meaningfully block any services, unless we put the whole Internet of Hong Kong behind large scale surveillance firewall."

Should China's government proceed anyway, the ISPs were quick to note that any ham-fisted attempt to cordon off Hong Kong from the rest of the world would only stifle industry in the city:

"By the above token, HKISPA would like to warn that, imposing any insensible restrictions on the open Internet would only result in more restrictions, as the original restrictions wouldn’t be effective, and ultimately the result is putting Hong Kong’s Internet behind a big firewall. Therefore, any such restrictions, however slight originally, would start the end of the open Internet of Hong Kong, and would immediately and permanently deter international businesses from positing their businesses and investments in Hong Kong."

Telegram is widely being used to help coordinate the ongoing protests. As a result, the company has been facing massive DDOS attacks that are likely being launched by the Chinese government. Regardless, Hong Kong ISPs say they'll refuse any government demands to censor the platform:

"ISPs in Hong Kong are all law abiding, but they may not circumvent technical and financial constraints of the business which may make executive orders to impose network restrictions not easily implementable. We request that the government consult the industry in resolving these constraints, and consult the society at large before imposing any such restrictions."

As on other fronts, China's government is a stumbling and confused mess when it comes to governing a free thinking, successful city, and any efforts to apply tactics used in China's mainland (most notably the 1989 Tiananmen Square protests) is likely to only make existing tensions worse.

Filed Under: censorship, china, hong kong, internet, internet blockade, isps, protestors, protests

Don't Let The Bret Stephens Bite: NY Times' Hypocritical 'Free Speech' Columnist Flips Out After Being Called A Bedbug

from the a-streisanding-for-the-ages dept

I will admit being only marginally aware of Bret Stephens in the past -- as someone the NY Times seems to employ to write really dumb opinion pieces that get people angry with how dumb they are. This latest bit of Bret Stephensisms isn't going to improve that impression. One of Stephens' big things, apparently, is whining about "the left" not believing in free speech any more, and complaining about things like "safe spaces on campus." Here are two recent examples:

If you're unable to see those, they're two columns by Stephens, with the first one entitled "Free Speech and the Necessity of Discomfort," and the second one entitled, "Leave Your Safe Spaces: The 2017 Commencement Address at Hampden-Sydney College." No matter what your stance is on "the necessity of comfort" or "safe spaces," once should at least conclude that Bret Stephens has positioned himself as one who believes that free speech is important, and people should chill out before getting offended.

Oh, and he sometimes tweets about free speech too, and has some more tweets that he's likely to regret before all this is over:

In the first tweet, he's quoting David French, saying "Our nation cannot maintain its culture of free speech if we continue to reward those who seek to destroy careers, rather than rebut ideas." Remember that one. And the second is "The right to offend is the most precious right. Without it, free speech is meaningless. That's what Charlie Hebdo was about."

Okay. That's a little background on Bret Stephens' professional opinion on free speech and people being offended when he's acting all intellectual-like. Now let's take a look at Bret Stephens' unprofessional opinion on free speech and people being offended, when someone calls him a bedbug.

On Monday morning, an assistant editor of the NY Times opinion section, Stuart Thompson, tweeted: "Breaking — There are bedbugs in the NYT newsroom." Lots of people made jokes about this. My favorite, from Lindsey Barrett, mocked the NY Times' unwillingness to call racism racism by rewriting it as: "I think you mean there's an insect-tinged problem in the NYT newsroom." She made some more jokes about bedbugs, including a fake headline by Bret Stephens: "'There Are No Bedbugs and If There Were, The Caustic Twitter Socialists Put Them There and Bed Bugs Are Good, Actually' --half a column by bret stephens, who was itching too vigorously to finish it" That one got lots of likes and retweets. But it's not the tweet that exposed Bret Stephens as the free speech hypocrite many people seemed to always assume he was.

Instead, it was a not even that funny tweet from Dave Karpf, an Associate Professor at George Washington University:

Then, last evening, Karpf noted that while that original tweet (cue ominous music: at the time...) had only 9 likes and 0 retweets, and did not in any way tag Stephens himself, Stephens took it upon himself to not just complain about the tweet to Karpf, but to cc his university provost:

We'll get to the contents of the letter in a moment. But, first, let's revisit those tweets from Stephens about free speech. He talked about how the right to offend was so important. And also was apparently against "those who seek to destroy careers rather than rebut ideas." Of course, there's no good reason for Stephens to cc the GWU provost except in a weak, thin-skinned, hypocritical attempt to destroy Karpf's career.

And let's not avoid the contents of Stephens' email. Because, it's weird.

Dear. Dr. Karpf,

Someone just pointed out a tweet you wrote about me, calling me a "bedbug." I'm often amazed about the things supposedly decent people are prepared to say about other people -- people they've never met -- on Twitter. I think you've set a new standard.

I would welcome the opportunity for you to come to my home, meet my wife and kids, talk to us for a few minutes, and then call me a "bedbug" to my face. That would take some genuine courage and intellectual integrity on your part. I promise to be courteous no matter what you have to say.

Maybe it will make you feel better about yourself.

Please consider this a standing invitation. You are more than welcome to bring your significant other.

Cordially,

Bret Stephens

It certainly sounds like Stephens "took offense" to Karpf's random joke. Perhaps he felt being a NY Times Opinion columnist gave him a "safe space" from criticism? It must be that, or otherwise, to think that calling him a "bedbug" is a "new standard" of Twitter-based discourse, suggests someone who is so shielded from the way Twitter arguments normally play out as to be a poor judge of what the "new standards" are of insults. And, yes, you could argue that Stephens' creepy invite to come over to his house (with Karpf's significant other) and insult him to his face, is a request for "more speech," in response to "speech." But, we should remind everyone that Stephens' cc'd the George Washington University provost.

Anyway, if you couldn't already guess what happened next, I should tell you that Merriam-Webster chose last evening to (not for the first time), tweet out their explanation of the Streisand Effect. Whenever the dictionary starts adding to my own mentions, you know something good is going down.

And, so, yes, within just a few hours, Karpf's tweet mocking Stephens, that had just 9 likes and 0 retweets, has many thousands of retweets and tens of thousands of likes. And, tons and tons of people are now associating Bret Stephens with bedbugs. Here's just a few fun tweets.

Like bedbugs, those tweets just keep on coming. On my Twitter account, at least, Bret Stephens, was the top "trending" topic for many hours last night. Note how many likes and retweets all of those tweets have. Bret Stephens has taken a throwaway line that most people ignored and ensured that, for years, people will associate him with bedbugs.

Incredibly, overnight, rather than realizing that he'd fucked up, Stephens apparently decided to dig deeper and make it worse. First, he shut down his Twitter account, laughably claiming that Twitter "is a sewer" that "brings out the worst in humanity." He then went on MSNBC and compared being called a "bedbug" to the worst "totalitarian regimes," while also (laughably, ridiculously) trying to argue that cc'ing the GWU provost wasn't about trying to get Karpf fired. He claims he just wanted the provost to know what his staff was doing. Which... come on. No one believes that.

Of course, like bedbugs, I'm guessing that the NY Times won't get rid of Bret Stephens either.

Filed Under: bedbugs, bret stephens, david karpf, getting people fired, hypocrite, insults, offensive speech, safe spaces
Companies: george washington university, ny times

SLAPP Threats Don't Even Need To Become Lawsuits To Be Effective: Cop Gets Columnist Fired For Pointing To Picture Of Him With Racists

from the slapp'd dept

A few weeks ago, we wrote about a troubling SLAPP lawsuit in Charlottesville, Virginia against a local independent paper, C-Ville, and a UVA history professor. That post mostly focused on the lawsuit against the history professor, Jalane Schmidt, and the ACLU's decision to defend her in the lawsuit. We didn't have much information for how C-Ville itself is dealing with the SLAPP suit. However, given its response to another SLAPP threat, it appears that C-Ville is mostly caving.

Back in May, Molly Conger, an opinion columnist for C-Ville, who built up her reputation by reporting on local racists and what they're up to, wrote an opinion piece merely highlighting the fact that a Charlottesville police officer, Logan Woodzell, who had just been promoted, had also been seen in a photo passed around on social media "posing with James Napier of the neo-Confederate group the Hiwaymen and Tammy Lee of American Freedom Keepers (one of the militia groups sued by the city for its involvement in Unite the Right)."

Nothing in the column calls Woodzell a racist. She just raises questions about the process by which Woodzell was given a promotion, as well as gives her opinion that the promotion shows "poor judgment" and "a disregard for the concerns of a community." Nothing in any of that is remotely defamatory. It's either a clearly factual statement (the photo exists and had been shared on social media) or opinion about what it showed concerning the Chartolttesville police force and its police chief, RaShall Brackney. Indeed, Woodzell is barely mentioned beyond the opening of the piece.

However, according to a Twitter thread from Conger, a lawyer from the local police union then threatened the paper over the piece -- leading C-Ville to cave and end Conger's relationship with the paper. Here's a lightly edited transcript of Conger's tweet thread:

Earlier this year, I had a short-lived opinion column covering city politics (a subject I am very passionate about!) in a local weekly paper. It quietly disappeared two months ago. My relationship with cville weekly came to an end after the attorney for the police benevolent society, representing an individual officer in this case, threatened to sue both me and the paper. Specifically, the cop’s lawyer claimed I had defamed her client in this piece. I don’t know how I could possibly have been clearer. At no point have I ever claimed this individual police officer personally holds white supremacist views. I explicitly said that I do not allege anything of the kind.

What I wrote and what I will continue to say is that the Charlottesville police department has been in absolutely no way held accountable for their inaction two years ago today. The image of a Charlottesville police officer with his arm around members of a white supremacist militia is a perfect illustration of a department choosing over & over to ignore the community it serves. It’s a picture of willful ignorance and complicity. Of harm through inaction.

I’m not surprised a police officer and a former prosecutor would try to weaponize the legal process to silence a critic. I am surprised that the paper reacted with such incredible cowardice. The threat itself was just that. A threat. From a bully. It is not an actionable legal claim, it’s an empty threat from a bully.

Conger writes some more after that, and it's worth reading, but the crux of it was that a police officer, backed with a lawyer from his union, appears to have threatened a publication for writing a factual article that portrays the officer in a way he didn't like. And the paper ended that writer's column. That's cowardice.

But it also shows why these kinds of SLAPP threats are so common, even if they don't end up as lawsuits directly. They're quite frequently effective.

Filed Under: free speech, jobs, logan woodzell, molly conger, slapp, threats
Companies: c-ville

China (Yes, China) Complains About Attack On Its 'Free Speech Rights' After Twitter/Facebook Boot Propaganda Accounts

from the nice-try-guys dept

Oh come on. Earlier this week we wrote about both Twitter and Facebook shutting down a bunch of Chinese accounts that both companies claimed were state-backed accounts pushing propaganda/misinformation/attacks against Hong Kong protesters. Separately, Twitter also changed its policies to no longer accept advertising from state-backed media operations. The Chinese government -- the very same government famous for aggressively censoring the entire internet -- apparently is not happy about it, arguing that it's a violation of free speech rights. Really.

A Foreign Ministry spokesman dismissed the allegations, made by the companies a day earlier, that the government had done something wrong in using online resources to portray the protests roiling Hong Kong as the work of “cockroaches” spurred to action by shadowy Western forces.

Rather, ministry spokesman Geng Shuang said, the accounts were not the work of alleged government disinformation teams but Chinese students and others living overseas who “of course have the right to express their point of view.”

First of all, even assuming that they are Chinese students living abroad (already a dubious claim), they may have a right to express their point of view, but they don't have a right to force Twitter and Facebook to host it. And, China knows this, considering that it currently bans both Twitter and Facebook in their country. So if it really believes that Chinese citizens deserve a right to express themselves on that platform, it might want to fix something back home first.

Filed Under: china, free speech, hong kong, protests, social media, trolls
Companies: facebook, twitter

State Rep Tries To Bring Criminal Harassment Charges Against Journalists For Being Journalists

from the lose-my-number(s) dept

In a small county in Oregon, free speech -- specifically the act of journalism -- is being threatened. The Malheur Enterprise, a weekly newspaper, has been investigating a state lawmaker's ties to business deals and contracts being executed in the county. Doing what journalists do, the paper's reporters have been trying to get answers or statements from people working with State Rep. Greg Smith, whose business dealings are currently under the small paper's microscope.

No one seems to want to talk to the paper, but good journalists are persistent and willing to talk to anyone who might give them a new lead or verify findings. This is how journalism works. Rep. Greg Smith thinks journalism is a criminal act.

The newspaper broke the news Monday morning after learning that Malheur County’s legal counsel had asked the sheriff to investigate whether reporters’ persistent attempts to contact officials, sometimes after business hours or using their personal email accounts, amounted to a violation of the law.

State Rep. Greg Smith, the Republican lawmaker at the center of the journalists’ investigation and who also serves as director of Malheur County Economic Development on a contract basis, complained to the newspaper: “It is not appropriate that you are sending emails to employees using their personal email accounts on the weekends,” and asked “to not have our employees contacted outside of their work place,” the paper reported.

Smith has taken his "evidence" to local law enforcement. Apparently, Smith believes email from journalists to people's personal email addresses ("at all times!") is a form of harassment. The state statute is written broadly enough that someone -- say, State Rep. Greg Smith -- might feel like they've got an open-and-shut case. The state's harassment law says a crime is committed if anyone "intentionally harasses or annoys another person" via lines of communication (phones, email addresses) they've been "forbidden" to use.

That explains Smith's statement to the newspaper. He did the forbidding. Now he's just cashing in his criminal charge chips. The next step is to get law enforcement on board. Achievement unlocked.

After initial publication of this report online, Rich Harriman, a commander in the sheriff’s office, posted a personal Facebook comment justifying action by police.

“Asking to explore if criminal activity is afoot is NOT suppressing the press,” Harriman wrote. “If they did something wrong, it keeps them from crossing that line again. Seems like this paper and its groupies might be desperate for a sexy story.”

So much for objectivity. The message has been sent: these government employees -- one a law enforcement official -- want nosy journalists to mind their own business. Any official can claim a phone line is off limits to get the ball rolling on bogus, First Amendment-damaging charges. The problem with Rep. Smith doing it is he already gave constituents permission to call him anytime.

Smith uses two emails in his conduct of county business. At a government meeting last fall, he gave the public what he described as his “personal” cell phone number He told the audience: “At any time that anyone has any questions or concerns, please call me directly.” He said he was available “24/7.”

He has listed that number on press releases from Malheur County and in his role as a state legislator.

I guess this line is only open to non-journalists. The Malheur Enterprise has plenty of "questions and concerns." Rep. Smith has no desire to address them. The best way to shut people up is to threaten their freedom.

Fortunately, Smith doesn't have the support of everyone in the Sheriff's office. This bullshit investigation appears to have reached the end of the line.

Malheur County Sheriff Brian Wolfe said Wednesday an inquiry determined no laws had been broken.

“As an elected sheriff, we will always respect the constitutional rights of anybody and everybody. We do believe in freedom of the press and free speech that we believe are our rights given by the Constitution of the United States,” Wolfe said.

Sheriff Wolfe might want to have a word with Commander Harriman and remind him he speaks for the office when he pipes up on Facebook with ill-advised comments that display his ignorance of the First Amendment and its protections.

If Rep. Smith doesn't like being dogged by journalists, he's in the wrong business. Being a public servant -- even part-time -- means being annoyed by the public, journalists included, on a regular basis. Hopefully, his career as a public servant is just about over. Going after the press with criminal charges is about the worst move a politician can make.

Filed Under: 1st amendment, greg smith, harassment, journalism, malheur county, oregon

North Carolina Appeals Court's Second Take On Retaliatory Arrests Just As Bad As Its First One

from the doubling-down-on-stupidity dept

The North Carolina Appeals Court has revised its earlier decision finding that retaliatory arrests over free speech are a thing that is right and good and supported by case law.

A man flipped the bird at a state trooper while passing him as he performed a traffic stop. The trooper decided this needed further investigation and pursued the passing vehicle. After demanding the rude passenger's identification (and being rebuffed), the trooper arrested him on contempt of cop charges (obstructing a public officer).

The man sued. The appeals court reached the weird-as-fuck conclusion that the officer had probable cause to initiate a traffic stop because one man's extended middle finger could have conceivably resulted in an eventual disturbance of the peace.

The court had to do a lot of work on behalf of the state trooper to reach this conclusion as there were several logical and legal hurdles to jump. It released this opinion to universal derision. Seemingly chastened by the backlash (and a seething dissent), the appeals court hastily withdrew the decision.

Well, it's back now. And nothing has changed [PDF], outside of some additional text that pounds the table slightly harder during the court's re-assertion of its twisted take on free speech protections. (h/t T. Greg Doucette)

The court revamps the opening to quote from one of its own decisions -- one that decided to rewrite a state statute on the fly by determining that it may violate state law to refuse to identify yourself during a valid stop. This 2017 ruling expanded the law to cover stops instead of just arrests. It works out well for law enforcement, which now has the leverage to force anyone to ID themselves. Refusing to ID yourself is now an arrestable offense. And once you're under arrest, you're definitely obligated to cough up identification.

That's what the court hangs its new ruling on: that the arrest was due to the failure to identify, not in response to the extended middle finger. But it still has to find the stop valid. And so it does… because that's what it did last time. The court expands its rationalizing on behalf of the sued officer to ensure a future free of consequences for cops who engage in retaliatory stops/arrests.

We note that there are a number of court decisions from across the country holding that one cannot be held criminally liable for simply raising his middle finger at an officer. This gesture obviously directed at a police officer is simply an exercise of free speech and, therefore, by itself typically would not give rise to reasonable suspicion sufficient to justify a stop.

The key word is "obviously," according to the NC court. After quoting the Supreme Court's admonishment that law enforcement officers are "reasonably expected to exercise a higher degree of restraint than the average citizen" when faced with contemptuous words or hand gestures, the court decides no one needs to be held to a higher standard here.

Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore maybe constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of “disorderly conduct.”

This doesn't sound like anything anyone who wants to be considered "reasonable" should claim they "suspected." Giving a cop the finger (or some sass, which I assume is a term used often in North Carolina) if there's anyone else in the conceivable vicinity is nothing more than issuing a fishing license to law enforcement officers.

Filed Under: 1st amendment, free speech, north carolina, police, retaliatory arrests

New Hampshire Supreme Court: Of Course It's Not Defamatory To Call A Patent Troll A Patent Troll

from the duh dept

Earlier this year, we wrote about a legal fight in New Hampshire, where patent trolling firm ATL, had sued a bunch of critics for defamation for calling them a patent troll. As we noted in February, this was an incredibly weak argument, as it's a statement of opinion. Thankfully, the New Hampshire Supreme Court got this one right and ruled that calling someone a patent troll is not defamatory.

The ruling is a pretty straightforward, by-the-books ruling on a bogus defamation claim on an opinion statement. It cites all the usual cases -- mainly Phantom Touring -- to point out that "patent troll" is just an opinion that can't be defamatory, because there's no objective standard by which you would prove it true or false. People can (and do!) disagree over what constitutes a patent troll, and the court system is not there to settle that debate.

We conclude that the challenged statement, that ATL is a well-known patent troll, is one of opinion rather than fact. As the slideshow demonstrates, the statement is an assertion that, among other things, ATL is a patent troll because its patent-enforcement activity is “aggressive.” This statement cannot be proven true or false because whether given behavior is “aggressive” cannot be objectively verified: “[w]hether or not a particular person’s behavior may be characterized as” aggressive is “a quintessential expression of personal judgment which is subjective in character.” Piccone, 785 F.3d at 772 (quotations and brackets omitted); see Catalfo, 657 F. Supp. at 468. “[I]t means different things to different people[,] and there is not a single usage in common phraseology.” McCabe, 814 F.2d at 842 (quotation and ellipsis omitted) (“The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); see also Phantom Touring, 953 F.2d at 728 (statements that plaintiff’s theater production was “fake” or “phony” could not be objectively verified “since those adjectives admit of numerous interpretations” (quotations omitted)). That CUNA acknowledged the “pejorative” nature of the phrase “patent troll” does not mean it is an assertion of fact rather than opinion. See Piccone, 785 F.3d at 772; see also Masson v. New Yorker Magazine, 832 F. Supp. 1350, 1367 (N.D. Cal. 1993) (“Falsity and defamatory meaning are analytically separate.”).

To the extent the plaintiffs argue that CUNA’s or the other defendants’ use of “patent troll” is one of verifiable fact rather than opinion because those statements were accompanied by a definition of the phrase, we disagree. As should be apparent from our discussion above, and as the Catalfo court explained, if a challenged statement is defined, but that definition itself “does not have a precise meaning such that it is capable of verification,” neither does the challenged statement. Catalfo, 657 F. Supp. at 468 (even if “sleazy” carried definition of “marked by low ethical standards,” it was not “capable of verification” because “[e]thical standards are inherently subjective”). For the reasons explained above, the definition of “patent troll” offered by CUNA cannot be objectively verified.

Other plaintiffs find their statements to be similarly protected:

Similar to CUNA’s allegedly defamatory statements, we conclude that the “references to ATL as a patent troll” in ABA’s 2013 testimony are expressions of opinion. Unlike CUNA, ABA did not offer a precise definition of “patent troll” in its testimony.4 If anything, though, ABA’s failure to specifically define the phrase, coupled with the lack of any concrete common definition, see Golden, supra at 2112-13 n.7, as well as the myriad ways in which its utterers deploy it, see Allison et al., supra at 242, makes it even more difficult for us to “imagine . . . objective evidence that might conclusively prove or disprove it.” Levinsky’s, 127 F.3d at 130. Like other, similar pejorative terms, “patent troll” is “quintessentially subjective.” Id.; see, e.g., Piccone, 785 F.3d at 772; Gray, 221 F.3d at 248; Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996) (statement calling plaintiff a “crank” was not actionable because it was “just a colorful and insulting way of expressing” disapproval of the plaintiff’s work). “[T]he status as a troll is in the eye of the beholder. Every firm that has a patent valuable enough to support major [infringement] litigation . . . has acquired that patent from some person who has invested the resources to invent that technology.” Mann, supra at 1023-24; see also Electronic Frontier Foundation, 290 F. Supp. 3d at 946.

The plaintiffs appear to argue that ABA’s 2013 statement referring to ATL as a patent troll cannot be construed as an opinion because it was made in the context of giving legislative testimony. According to the plaintiffs, “legislation cannot address an issue that cannot be defined.” We disagree with the plaintiffs’ “untenable premise” that all legislative testimony must, ipso facto, consist entirely of factual assertions. Riley, 292 F.3d at 294. People can, and regularly do, express their personal opinions before legislatures.

The court also (easily, as have other courts) rejects the claims that if you don't say "I think" or "In my opinion" before a statement of opinion, it's not longer an opinion:

The plaintiffs’ appellate arguments with respect to Stier and Pierce Atwood’s statements are generally duplicative of their arguments as to CUNA’s and ABA’s respective statements. Their arguments pertaining to these two defendants differ from those pertaining to the other defendants in two ways that bear mention. The plaintiffs contend that the context of Stier and Pierce Atwood’s patent troll statements make them actionable because they contain “no language to alert the audience that the statements . . . are expressions of opinion.” However, “the law does not force writers to clumsily begin each and every sentence with” language such as “I think,” or “in my opinion,” for a statement to constitute an opinion. Riley, 292 F.3d at 292 (quotation and brackets omitted). Rather, Stier and Pierce Atwood’s patent troll statements are opinions for the same reason that CUNA’s and ABA’s statements are: whether ATL is a patent troll cannot be “objectively verified.” Piccone, 785 F.3d at 772 (quotation omitted).

I'm reminded of a lawyer who once pointed out to me that it's just as easy to start a sentence saying "in my opinion..." followed by a potentially defamatory factual statement, as it is to state "it is a fact..." followed by a statement that is purely opinion. All that matters is whether or not the claim itself is actually a fact or an opinion -- not whether your declare it one way or the other.

And with that, ATL has to live with the, uh, fact that New Hampshire's Supreme Court has said it's not defamatory to call ATL a patent troll. So, sing it with me, folks: ATL is a patent troll. After all, it sent threat letters to a ton of banks and credit unions, claiming their ATMs violated its patents, and demanding licensing fees. It also set those license fees at a rate that would be below what it would likely cost to fight a patent lawsuit. These are hallmarks of what most of us consider to be patent trolls.

Filed Under: 1st amendment, defamation, free speech, new hampshire, opinion, patent troll
Companies: atl