8th Circuit's Bizarre Ruling In Devin Nunes' SLAPP Suit Against Reporter Ryan Lizza

from the wait,-what? dept

Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we've been writing a fair bit about the lawsuit Nunes' family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There's been more nonsense since we last wrote about it, but I'm kind of waiting on the judge to actually rule before I go into the details.

Still, if you'll recall, there were actually two separate lawsuits here. The one we've been writing about was filed by Nunes' family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it's there.

Based on the article’s presentation of facts, we think the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm’s use of undocumented labor. See Manzari, 830 F.3d at 889; Stevens, 728 N.W.2d at 827. In reaching a contrary conclusion, the district court relied on the location of the relevant facts in the article. The court determined that the facts about Nunes conspiring to hide the farm’s move and the facts about the farm’s use of undocumented labor were “scattered at disparate points” and thus not “juxtaposed.”

But defamation-by-implication claims, like defamation claims generally, must be analyzed by considering the article as a whole. Toney, 85 F.3d at 396. Although the Iowa court in Stevens posited a defendant who “juxtaposes a series of facts,” 728 N.W.2d at 827 (internal quotation omitted), we do not believe the theory is limited to situations in which the implication arises from, say, consecutive sentences. “It is well settled that the ‘arrangement and phrasing of apparently nonlibelous statements’ cannot hide the existence of a defamatory meaning.” Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Kapellas v. Kofman, 459 P.2d 912, 919-20 (Cal. 1969)). When a reader, “connecting the dots,” could reasonably arrive at the implication, the author may be accountable. Elias v. Rolling Stone LLC, 872 F.3d 97, 109 (2d Cir. 2017). Whether the “arrangement and phrasing” of facts creates a defamatory implication depends on the particular context; an intervening section break does not necessarily avoid liability.

The court also does a really bizarre analysis of how the article might be defamatory. This contradicts nearly every other ruling on what is and what is not protected opinion:

Nunes alleges that the article implies the existence of a “politically explosive secret” that he “conspired with others” to hide the farm’s use of undocumented labor. A conspiracy is an agreement that requires knowledge—here, knowledge that the farm employed undocumented labor and a knowing agreement to cover up that politically embarrassing fact. Yet the Congressman’s complaint says that he was “not involved” in the farm’s “operations,” had “no knowledge of who the dairy farm hired,” and thus “was not involved in any conspiracy or cover-up.” Whether Nunes knew about the farm’s hiring practices, including the potential use of undocumented labor, and whether he agreed with others to keep that information secret, are issues of verifiable fact. We thus conclude that the implication is “sufficiently factual to be susceptible of being proved true or false,” so it is not a protected opinion.

That seems like a huge stretch. What saves it (and kills the core defamation lawsuit) is the actual malice standard. Nunes, on appeal, tried to argue that the actual malice standard is wrong, and you kind of get the feeling the judges here agree, but feel obliged to live under it:

On appeal, Nunes suggests that the actual malice standard of New York Times v. Sullivan should be reconsidered,... but of course we are bound to apply it. Under that demanding standard, we agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.

And then it gets dumber. Note that they say that with regards to "the original publication." The court claims the same does not apply to Lizza's later tweets about the article.

The district court went further, however, and ruled that the complaint does not state a plausible allegation that Lizza acted with actual malice by republishing the article on his Twitter account after this lawsuit was filed. On this point, we respectfully disagree.

The court then claims that tweets are different from the original publication, which is a bizarre perversion of the single publication rule (that says that a single publication of an article can only count as a single defamation), and that each tweet can be a separate "publication." And then says that Lizza's tweets after the lawsuit was filed could meet the actual malice standard, since by that point Lizza was, in effect, on notice that Nunes felt the information in the article was false.

Nunes’s initial complaint was filed on September 30, 2019. The complaint alleged that the “strong defamatory gist and false implication” of the article was that he “was involved in, covered-up, used his office to cover up, conspired with others to conceal, or was aware of criminal wrongdoing.” The next paragraph of the complaint makes clear that the “criminal wrongdoing” to which Nunes referred was the farm’s alleged use of undocumented labor. The complaint denied that Nunes had any involvement in the farm’s “operations,” denied that there was a “secret” involving the farm’s move to Iowa and his alleged hypocrisy on immigration policy, and denied that he “was involved in, covered-up, . . . conspired with others to conceal, or was aware of criminal wrongdoing.”

Nonetheless, on November 20, 2019, Lizza posted a tweet with a link to the article. Lizza’s tweet stated: “I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.” As discussed, the complaint plausibly alleges that the article defames Nunes by implication.

Lizza and Esquire pointed out that this tweet is not even remotely republication (because it's not). And nothing in that tweet by itself can possibly be defamatory. But.. for reasons that I cannot fathom, the court felt otherwise.

Lizza and Hearst contend that Lizza’s tweet of a link to the original article does not constitute republication of the article. They cite Sundance Image Technology, Inc. v. Cone Editions Press, Ltd., No. 02-CV-2258, 2007 WL 935703 (S.D. Cal. Mar. 7, 2007), which held that providing links to previous publications on a website, without more, was not republication. Id. at *7. And other courts have concluded that “mere reference to an article,” In re Phila. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), or a “mere hyperlink,” Lokhova v. Halper, 995 F.3d 134, 143 (4th Cir. 2021), without more, is not a republication. But these decisions do not hold categorically that hyperlinking to an original publication never constitutes republication.

The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article. In November 2019, Lizza was on notice of the article’s alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his “strange tale” about “immigration policy,” and promoting that “I’ve got a story for you.” Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.

This is just wrong. It ignores basically all precedent on how the single publication rule works. The story itself has not been republished. It's the same story. The whole point of the single publication setup is that unless the story changes, all that matters is the original publication date. Reuter's chief counsel highlights how this is just flat out wrong:

The ruling is complete nonsense. It's not how this works at all. Just because Nunes claims the article is defamatory does not put Lizza on notice that it is false, or that pointing people to that article meets the actual malice standard of publishing something knowing that it was false or with reckless disregard for the truth. It seems clear that Lizza still stands by the story and believes that what's in there is true. So everything about this is screwy. The perversion of the single publication rule. The claim that actual malice can apply for any statement after the filing of the lawsuit. Even the elements for what is an opinion are kinda weird.

The likely end result of this is that Lizza now has to go through this process all over again in the district court, focusing on actual malice, and gets the case dismissed again, but that's a hugely expensive and time exhausting process.

Politico quotes law professor Chip Stewart noting just how weird all this is:

"It’s certainly a novel application of a couple of important libel doctrines, and a potentially troublesome one if the 8th Circuit’s ruling is allowed to stand," said Chip Stewart, a professor at Texas Christian University. "It’s an odd kind of bootstrapping argument. Nunes claims the underlying article is false. He sues over it. Lizza tweets the exact same story after the lawsuit is filed. And what was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story."

Politico also suggests that this ruling would open up the possibility that Nunes could sue anyone who retweeted the article, but this is almost certainly wrong. Here's what Gerstein wrote:

One curious aspect of the ruling is that it appears to open the door to lawsuits against anyone who tweeted or retweeted the original story with knowledge of Nunes' lawsuit, and to similar claims over members of the public or those with significant social media followings tweeting or retweeting stories after learning that the subject of the story is disputing it in some way.

Except, that shouldn't be true, because for everyone but Lizza (and Esquire), Lizza's article is 3rd party content, and (while people forget this), Section 230 protects users who share 3rd party speech. Remember, the law is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." So, all those other tweets should be protected under Section 230.

Still, this is a bizarrely dumb ruling that allows a clearly vexatious SLAPP suit to continue. Even if the district court (hopefully) tosses out the case again on summary judgment, this whole process is extremely wasteful and the ruling on the books in the 8th circuit is completely upending how the single publication rule works -- making it a dangerous place for defamation claims.

Filed Under: 1st amendment, 8th circuit, actual malice, anti-slapp, defamation, devin nunes, esquire, free speech, retweets, ryan lizza, single publication, slapp, steven biss
Companies: hearst, twitter

Satire Site Gets Ridiculous Threat Letter From Baseball Team; cc's Barbra Streisand In Its Response

from the that's-how-you-do-it dept

The Popehat signal went up and it was for a good cause (even if it's ridiculous that it was needed). The satirical site "Takoma Torch," which is an attempt at being a sort of local The Onion for a suburb outside of DC, posted an article making light of the nearby town of Olney, Maryland and its new Cal Ripken Collegiate League baseball team. Playing off of the recent drama regarding the company OnlyFans, Takoma Torch's Eric Saul wrote up an amusing article about "OlneyFans." You can click through to read the story, but the opening gives you the gist:

Within hours of going live, “OlneyFans,” the website for Upper Montgomery County’s new Cal Ripken Collegiate League baseball team, crashed this week due to unusually high web traffic.

“We knew that starting a new baseball team in Olney would be popular, especially with males between the ages of 13 and 55,” said marketing director Brock Jacobs. “But when our site registration exceeded the entire population of Maryland after announcing a free footlong on opening day against Bethesda Big Train, we realized our huge oversight.”

There are a few more such paragraphs and it's somewhat amusing. Except, apparently, to the very, very foolish people who run the Olney Community Baseball Team who found someone who is apparently a real lawyer, Andrew Schwartz, to write one of the dumbest threat letters we've seen in a while. Schwartz, who specializes in business law, employment law, and real estate law seems to know fuck all about how free speech works.

The letter has some real whoppers in there.

Olney Baseball has learned that The Takoma Torch has circulated communications that use the name, image, or likeness of Olney Baseball in a false, misleading, and/or defamatory manner. For instance, on September 8, 2021, The Takoma Torch published an article entitled "OlneyFans Website for MoCo's New Baseball Team Crashes Due to Unusually High Traffic" (the "Article"). No one from or on behalf of Olney Baseball was contacted, interviewed, or consulted about the Article. The Article contains numerous false and misleading statements, and it misrepresents the Olney Baseball organization. For instance, and not by way of limitation, Olney Baseball: (i) does not have a website; (ii) the individuals purportedly quoted in the Article have no relationship with Olney Baseball and they are not in any way affiliated with Olney Baseball; (iii) the individuals quoted in the Article have no authority to comment or speak on behalf of Olney Baseball; and (iv) the Article references a purported logo for Olney Baseball; however, Olney Baseball does not have any logo at this time.

Talk about missing the joke. The letter goes on to talk about all the time and money they've wasted investigating this matter and demanding The Takoma Torch cease and desist "all activities, including, but not limited to, publication, dissemination, distribution, sharing, posting and all use of or reference to the Olney Baseball name, image, and likeness in connection with any article, post, communication, and/or comment in whatever medium and in any forum." They also demand the article be taken down and all the usual legal mumbo jumbo designed to scare people.

Thankfully, the Takoma Torch and Eric Saul seem to know enough not to be intimidated, and made public their response. It's too good.

Thank you for your recent submission of a satirical legal threat. Even though our writing team found it to be extremely hilarious, unfortunately, it did not technically meet our qualifications of containing fewer than 300 words and have a punchy headline, so we will not accept it at this time. Perhaps you could have used "Olney Makes History with First Baseball Team to Lack a Sense of Humor," or even "Lawyers Has Ball to Make Baseless Claims Against Satirical Baseball Story." Either one of these headlines would have been acceptable.

There's more, but the best part, by far, is the signoff.

Why, yes, that is a "cc: Barbara Streisand" which caused half the internet to alert me to it (Psst: Eric, for future reference, her name is now actually Barbra without the extra "a").

And, given how often I've seen this type story come up, it appears that the Streisand Effect is alive and well. Saul has said his traffic went up more than 10x, to the point that his hosting company even alerted him that his traffic was "booming."

Of course, some of the backstory behind all of this makes it even crazier. According to the Washingtonian, Eric Saul of the Takoma Torch knows the owner of the baseball team and had even done him favors in the past:

Saul said he was bewildered by the letter. For starters, he says, “The guy suing me is my friend!” Indeed, Jeff Schwaber, the managing partner at Stein Sperling, confirms that Saul and Tony Korson, the CEO of Koa Sports, an organization behind the team, have coached baseball together and that Saul designed the interior of Koa Sports’ facility for free. Korson called Saul about the article on Friday, Saul says, and he agreed to remove the original graphic for the story, which showed an artist’s rendering of the team’s potential field, and replace it with an aerial photo. “I thought that was the end of it,” he says.

Some thanks he gets for designing the interior of their facility for free!

Incredibly, rather than backing down, the lawyers at Stein Sperling seem to be doubling down. Again from the Washingtonian:

Schwaber says the problem, from his client’s point of view, is that the baseball team is a new organization whose name is being “deliberately confused” with a site known for adult content. But Takoma Torch is clearly a humor publication, I said. Doesn’t the precedent in the Supreme Court case Hustler Magazine, Inc., v. Falwell—which found that the First Amendment protected even offensive speech as long as “that speech could not reasonably have been interpreted as stating actual facts”—protect this sort of joke?

“Look, there is a lot of humor that’s protected speech,” Schwaber replied. “But there are also lines that get crossed.” For instance, he says, Washingtonian could not write an article that accused Schwaber of molesting children and be protected by labeling it satire.

Um. That's just dumb, Jeff. That's not how any of this works. This did not cross the line and it was clearly satire. Schwaber kept on going and said even more stupid stuff to the Washington Post:

“Of course we support the First Amendment and the right of the Takoma Torch or anyone else to use satire as a medium,” wrote Stein Sperling’s Jeffrey M. Schwaber in an email.

No you don't, Jeff. You sent him a fucking cease-and-desist that threatens litigation for his satire. So you do not support the 1st Amendment.

“Our concern is that our client has worked very hard to create an opportunity to bring a community oriented, children and family friendly baseball team to Olney, and now is faced with the challenges posed by having their new brand deliberately confused with an exploitative site filled with graphic and explicit content.”

No one is confusing anything, dude. Except you. Everyone got the humor. Except you. Either way, the Streisand Effect has claimed another victim.

Update: And... not surprisingly, it appears that the lawyers and the Olney baseball team realized that at some point you stop digging, and have agreed not to pursue legal action here:

Filed Under: andrew schwartz, barbra streisand, eric saul, free speech, jeff schwaber, satire, streisand effect, threats
Companies: olney community baseball, onlyfans, takoma torch

Commentator Insists That Fact Checking Is An Attack On Free Speech

from the that's-not-how-this-works dept

There are some really bizarre ideas out there -- and one that has popped up a bunch recently is the idea that fact checking is antithetical to free speech. We've seen a few faux "conservatives" arguing that fact checkers should be regulated and that they're not protected by the 1st Amendment. This is wrong of course. Fact checking is (1) speech, and (2) stating an opinion on the veracity of some other content. It's quintessential protected opinion.

But, the most bizarrely stupid version of this argument was published recently in the Hill, by columnist Armstrong Williams, in a piece entitled: Uninhibited Speech is the Ultimate Weapon in the Fight Against Misinformation. You might think from this title that he would support fact checking -- which is part of that "uninhabited speech." Instead, he seems to think it's an infringement on rights.

For too long, Big Tech has controlled what we say by imprinting into the minds of the masses a certain worldview. Big Tech has silenced dissenters, making those who dare to disagree with them outcasts. The “fact-checkers,” both manual and automated systems, review social media posts and censor them when they determine a post to be false or misleading. The very notion that a company would hire someone to fact-check private speech is outrageous. We should not tolerate lies, but it is not the job of a powerful few to label something as a “lie”; it is the job of the content consumer to do so. Giving a few entities the power to brand people as liars gives them disproportionate power to determine truth by labeling some lies as “fake news” but not others, according to their agenda. 

So... we should have uninhibited free speech... unless that speech is coming from a big tech company? Because that's no longer uninhibited.

Now, there is a legitimate point buried amidst all the muck here, noting that just because someone has done a "fact check" on a piece of content, does not necessarily mean that the fact check is accurate. But a fact check is, undeniably part of the "more speech" approach. Williams isn't mad about "fact checking." He's mad that he doesn't agree with the results of these fact checks. Indeed, he could have made a stronger point if he had argued not against fact checking (which is clearly speech), but what is then done with the results of those fact checks (though, again, moderation decisions by private companies are also protected expression). Either way, when you get to the crux of his argument, it's that companies who fact check don't deserve any free speech rights to do so.

Did we need fact-checkers to end the idea that slavery was “natural,” as Aristotle said? Did we need fact-checkers to guide our Founding Fathers’ hands in writing the Constitution? No, what we needed was the natural, unfiltered flow of ideas from one person to another.

And... some of that "natural, unfiltered flow of ideas" is someone fact checking the content. That's how the marketplace of ideas works. You can criticize the fact checkers and the end result of their fact checks. That's reasonable. Fact checkers often get stuff wrong. But to argue that their speech somehow impinges on someone's speech is nonsense.

It's really funny how much he wants to silence speech in favor of letting speech flow if he likes that speech. I mean, this paragraph is just pure nonsense:

Rational thought spread like wildfire without the need of social media, and irrational thought died with the few patrons who consumed it. The world was changed by the thoughts of a few ordinary people who dared to think. Of course, people disagreed, and some even became violent, but a person’s right to open his mouth and unleash volumes of unique ideas upon his neighbors should not be stifled by the vitriol that their thoughts create.

Apparently, a person's right to open his mouth should not be stifled unless that person is fact checking.

Does Williams have no principles at all?

Labels make it easy to destroy people. They shift burdens of proof to the party being labeled, making it impossible to peel away the label one is given.

Labels are speech, dude. If you disagree, you should speak up and explain why the label is incorrect, misleading or inappropriate. That is uninhibited speech. But fact checking and labels (and moderation decisions) are all speech in themselves.

We should all continue to express our thoughts honestly, unfiltered and uninhibited.

Unless you're a fact checker or someone who labels people in a way that Armstrong Williams does not like?

Every person should conduct his or her own research to determine whether something someone says appears to be true.

Again, unless you're a fact checker or someone who labels people in a way that Amstrong Williams does not like?

Each of us must consider the facts, connect the dots, and come to our own conclusions.

And, a fact checker is part of that discussion. No one says you have to believe everything a fact checker says.

Sure, we might get it wrong; everyone does that sometimes because we are human. But right always prevails over wrong, the truth overcomes fallacies, and good triumphs over evil.

Apparently, Williams believes this applies to everyone... except fact checkers.

What a bunch of censorial garbage.

Filed Under: armstrong williams, fact checking, free speech, more speech, social media
Companies: facebook, twitter

Court: Just Because An Anonymous Yelp Reviewer Is Mean, Doesn't Mean You Get To Unmask The Reviewer

from the anonymity-matters dept

I've never understood why so many doctors sue over bad reviews, but it just keeps happening. Dr. Muhammad Mirza has built up something of a reputation for suing people who leave bad reviews on Yelp -- and has been successful in stifling speech:

Dr Mirza says he's already won or reached settlements with three reviewers, forcing them to take down the false review and pay an undisclosed amount of money.

As that article notes, he was able to get courts to force Yelp to turn over the names of anonymous reviewers in the past, and it appears that has emboldened him to continue suing reviewers.

However, in one of his more recent cases, thankfully, a court has pushed back on the unmasking attempt. This was yet another case where Dr. Mirza had to go to court against Yelp to try to get the company to unmask an anonymous reviewer who wrote:

“Worst experience I’ve ever had! Woke up looking like a monster!!! Cheap product and he’s absolutely not experienced nor does he care!!!!!”

As Yelp pointed out to the court, this statement clearly is not defamatory as there are no statements of fact that can be proven true or false -- it's all opinion. And, thankfully, anonymous speech is protected under the 1st Amendment. In a recent ruling in NY the court agreed and rejected Dr. Mirza's attempts to unmask that reviewer.

The ruling is pretty short, but worth reading. It notes the importance of protecting anonymous speech. That does not mean that anyone who is anonymous can get away with saying anything, but there is a reasonably high bar for unmasking such speech:

Anonymous Internet speech is protected by the First Amendment. See In re Anonymous Online Speakers, 661 F.3d 1168, 1173-77 (9th Cir. 2011); accord Rich v. Butowsky, No. 20 Misc. 80081, 2020 WL 5910069, at *3 (N.D. Cal. Oct. 6, 2020). Anonymous speech “is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue.” Anonymous Online Speakers, 661 F.3d at 1173; accord Butowsky, 2020 WL 5910069, at *3. Courts in the Ninth Circuit have required pleadings to meet a variety of standards before requiring disclosure of an anonymous speaker’s identity. Anonymous Online Speakers, 661 F.3d at 1175-76 (collecting cases) (noting that some cases require plaintiff to make a prima facie showing of its claim, that others rely on a motion to dismiss or good faith standard, while others rely on a standard somewhere between the motion to dismiss and the prima facie standard). Plaintiffs argue the Court should apply the First Amendment standard set forth in Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), and Yelp does not object to application of the test. Because Highfields is persuasive on this issue, it will be applied. See Butowsky, 2020 WL 5910069, at *3 (applying the First Amendment standard put forward by the parties); see also Music Grp. Macao Commercial Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 983 (N.D. Cal. 2015) (concluding Highfields provided the correct standard among “the developing tests in the area of anonymous online speech,” where challenged speech was (1) derogatory statements about a corporate official and (2) criticism of plaintiffs’ business).

Under the Highfields test, a party seeking enforcement of a subpoena must first make out “a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff.” Highfields, 385 F. Supp. 2d at 970. The Ninth Circuit has characterized this as a requirement for the plaintiff to establish a prima facie case for its claims. Anonymous Online Speakers, 661 F.3d at 1175. If a plaintiff successfully makes a prima facie case, the court must next “assess and compare the magnitude of the harms that would be caused” to (1) the plaintiff’s First Amendment interests and (2) the defendant’s commercial interests. Highfields, 385 F. Supp. 2d at 976, R&R adopted, 385 F. Supp. 2d at 971. If such an assessment reveals that disclosing the defendant’s identity “would cause relatively little harm to the defendant’s First Amendment and privacy rights,” but is “necessary to enable [the] plaintiff to protect against or remedy serious wrongs,” then the court should allow the disclosure.

In this case, the initial complaint fails to meet the standard of claiming defamation.

WHEREAS, the Complaint’s defamation claim arises under New York law.1 The elements of a cause of action for defamation are: “(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se.” Braunstein v. Day, 144 N.Y.S.3d 624, 625 (2d Dep’t 2021) (internal quotation marks omitted). Statements of opinion are not actionable, as “[a]n opinion cannot be proven false and therefore does not give rise to liability for defamation purposes.” Gottwald v. Sebert, 148 N.Y.S.3d 37, 47 (1st Dep’t 2021). Statements must be viewed in context, and where a communication has a “loose, figurative or hyperbolic tone” that “suggest[s] to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with [a] plaintiff[],” that statement is one of opinion. Torati v. Hodak, 47 N.Y.S.3d 288, 290 (1st Dep’t 2017) (internal quotation marks and alterations omitted). Courts must also be mindful that “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” Id. (internal quotation marks and alterations omitted).

WHEREAS, Plaintiffs have not made a sufficient showing of a prima facie defamation claim under New York law, as the Review, read in context, would be perceived by a reasonable person to be nothing more than a matter of personal opinion as to the quality of Plaintiffs’ products and services. New York courts have consistently declined to find anonymous reviews analogous to the Review actionable for purposes of defamation. See id. (concluding that negative comments anonymously posted on consumer review websites, describing plaintiff as a “bad apple,” “incompetent and dishonest,” and a “disastrous businessman” were not actionable); Woodbridge Structured Funding, LLC v. Pissed Consumer, 6 N.Y.S.3d 2, 3 (1st Dep’t 2015) (finding online review claiming defendants “Lie To Their Clients” and “will forget about you and . . . all the promises they made to you” non-defamatory); Sandals Resorts Int’l Ltd. v. Google, Inc., 925 N.Y.S.2d 407, 410-11 (1st Dep’t 2011) (email criticizing plaintiff’s operations in Jamaica, despite containing specific factual allegations, was still a non-actionable opinion); see also Mirza v. Amar, 513 F. Supp. 3d 292, 299 (E.D.N.Y. 2021) (rejecting Plaintiff Mirza’s claims that a separate statement similar to the Review was defamatory).

And, importantly, the review did not have statements of fact, as it was clearly all opinion:

Plaintiffs next argue that two of the Review’s claims -- that Mirza is “not experienced” and uses “[c]heap” products -- are actionable statements of fact. This argument is unpersuasive because where “some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a nondefamatory meaning, grounded in opinion.” Woodbridge, 6 N.Y.S.3d at 3. Because Plaintiffs have not made a prima facie case of defamation, their request for the identity of the John Doe defendant is improper.

I understand that it sucks to get negative reviews online. And, that not all online reviews are truthful. But that does not mean you get to automatically uncloak anonymous critics, nor does it mean you get to sue them for defamation.

In the meantime, kudos to Yelp for fighting for the rights of its reviewers, rather than just rolling over and handing out the info like lots of sites might do.

Filed Under: 1st amendment, anonymity, defamation, identification, muhammad mirza, new york, reviews, slapp
Companies: yelp

Computer Repair Shop Owner Has To Pay Twitter's Legal Fees Over Bogus SLAPP Suit Regarding Hunter Biden's Laptop

from the don't-slapp dept

At the end of last year we wrote about an absolutely ridiculous SLAPP suit filed by John Paul Mac Isaac, the owner of a computer repair shop whose name became somewhat famous after the NY Post ran a story regarding what was apparently Hunter Biden's laptop that had been abandoned at the shop, which eventually found its way to Rudy Giuliani. When the initial story broke, both Twitter and Facebook moved to limit the spread of the article as there were some initial concerns about the veracity of the story. In Twitter's case, it said that the story violated its policy on "hacked materials" (a policy that we've argued was problematic for journalism).

Isaac then argued that because of Twitter's moderation decision over "hacked materials" that it had defamed him in calling him a hacker. Consider this the precursor to a flurry of other lawsuits we've seen recently of mostly bad faith actors arguing that the reasons they were moderated are defamatory, which is not how any of this works. The initial lawsuit was tossed the same day it was filed on jurisdictional grounds, but a substantially similar lawsuit was filed a couple months later that solved the jurisdiction question by adding Madbits as a defendant. Madbits was an image search startup that Twitter acquired many years ago and shut down. Isaac argues in the complaint that Madbits still exists (even though Florida records show the company was shut down after the acquisition) as a way for Twitter to somehow skirt Florida employment laws. Either way, the addition of Madbits provided the kind of diversity jurisdiction necessary to keep the case alive, unlike the initial version that got tossed.

Of course, it still didn't help -- and Florida's anti-SLAPP law now means that Isaac is on the hook for Twitter's legal fees. The ruling is pretty straightforward. This was not anything even remotely close to defamation. Regarding the "defamation per se" claims, the judge notes that Isaac's legal "theory is flawed for several reasons." Mainly because nothing Twitter did was in reference to Isaac himself.

Here, in contrast, the only persons identified in the Explanations are the NY Post, Hunter Biden, “Ukranian biz man” and “dad”—not Plaintiff, his business, or any other descriptive information that made Plaintiff’s identity readily ascertainable.... The Court is certainly sympathetic to the events that took place and could envision a plausible claim had the explanations identified the “Mac Shop,” “a Delaware repair shop” or even included a photo of the Repair Authorization. However, such is not the case here, and the law will not subject Defendant to liability where it was “meticulous enough” to preserve Plaintiff’s anonymity

And then we have Florida's anti-SLAPP law to thank for Isaac having to pay Twitter's lawyers' fees.

The Court agrees that Defendant is entitled to an award of attorneys’ fees and costs under Florida’s anti-SLAPP statute. First, for the reasons set forth above, Plaintiff’s defamation claim is without merit....

Second, the instant suit arose from Defendant’s protected First Amendment activity—i.e., preventing the dissemination of the NY Post Article on its platform for violation of its content moderation policies. See Corsi v. Newsmax Media, Inc., No. 20-cv-81396-RAR, 2021 WL 626855, at *11 (S.D. Fla. Feb. 12, 2021) (first amendment protection for “hosting and moderating a debate on matters of public concern.”). Plaintiff maintains that the anti-SLAPP statute is inapplicable because “[Defendant] was not moderating a discussion of public issues[,]” but instead “attempting to suppress a discussion of public issues[.]” .... While this precise issue has not yet been addressed in the context of Florida’s anti-SLAPP Statute, the Court agrees with the numerous decisions of other courts that Defendant has a “First Amendment right to decide what to publish and what not to publish on its platform.”

That last line is an important reminder: every website has a 1st Amendment right about what can and cannot be published on its site.

Either way, SLAPP suit dismissed, lawyers fees must be paid by Isaac.

Filed Under: anti-slapp, content moderation, defamation, free speech, hacked content, hunter biden, john paul mac isaac, slapp
Companies: twitter

Report Shows DOJ Engaged In Selective Prosecution To Maximize Punishment For 'Black Lives Matter' Protesters

from the once-again,-DOJ-showing-it-really-should-have-the-word-'justice'-in-its dept

Under Trump, the DOJ did all it could to break the spirit of the Black Lives Matter movement that took on renewed vigor last spring following yet another killing of an unarmed black person by a white cop. That's according to a report [PDF] by The Movement for Black Lives, which examined BLM-related prosecutions headed by federal prosecutors.

The federal government deliberately targeted Black Lives Matter protesters via heavy-handed criminal prosecutions in an attempt to disrupt and discourage the global movement that swept the nation last summer in the wake of the Minneapolis police killing of George Floyd, according to a new report released Wednesday by The Movement for Black Lives.

[...]

The report also points to the stark difference in how the government handled the COVID-19 protests against local government shutdowns and mask mandates amid the pandemic during the same period. It analyzes 326 criminal cases initiated by U.S. federal prosecutors over alleged conduct related to protests in the wake of Floyd's murder and the police killings of other Black Americans, from May 31, 2020, to Oct. 25, 2020.

The report's most damning conclusions point to a DOJ headed by Bill Barr -- one that swiftly aligned itself with President Trump and his assertions the social justice protests were largely composed of criminals and anarchists, rather than peaceful protesters seeking to change an unjust justice system.

The report points out the federal government needlessly took control of prosecutions, exploiting loosely-defined "interstate commerce" statutes to bring federal charges against arrested protesters -- charges that carried steeper sentences than similar state-level charges.

For example, the federal arson statute, 18 U.S.C. § 844, has subsections which not only vest federal jurisdiction over offenses against any property which belongs to an entity which receives any federal funding but against any property which simply affects interstate commerce. This report found that the broad parameters of the statute were heavily utilized against defendants who had allegedly damaged or attempted to damage local police vehicles, police precincts, or government buildings and/or property. Unfortunately, because federal courts have accepted such arguments in the past, the government’s argument to support a finding of federal jurisdiction in these cases on interstate commerce grounds was to simply assert that these local governmental entities affect interstate commerce. Where the government attempted to establish federal jurisdiction because the entity received some federal funding, criminal complaints would simply assert, often without any reference to government funding data, that the local government or police department received some form of federal financial assistance—as nearly all local governments and police departments do.

Federal prosecutors also used super-thin assertions about an interstate nexus to stack charges.

Prosecutors are charging Lore-Elisabeth Blumenthal with four counts of arson for allegedly attempting to burn two police vehicles. Prosecutors are bringing multiple counts for each attempted arson by relying on separate provisions of the federal arson statute, claiming that the police vehicles belonged to a police department which received federal funding, which implicates 18 U.S.C. § 844(f), and because the same police vehicles affected interstate commerce, which implicates 18 U.S.C. § 844(i). As a result, Blumenthal now faces the possibility of being convicted on four separate counts, each of which carries a minimum sentence of five and a maximum of twenty years in federal prison.

Even the damage of local businesses by rioters was taken over by federal prosecutors, who used flimsy pretexts like the purchase of supplies from out-of-state suppliers to satisfy the interstate commerce requirements.

And, in one case detailed in the report, a man is facing felon-in-possession charges for carrying supplies capable of creating a Molotov cocktail. According to federal prosecutors, a Molotov cocktail (even in an unassembled state) qualifies as a "firearm." And the interstate nexus was satisfied because the empty bottle was made by an out-of-state manufacturer.

Hoping to deter future protests by making ongoing protests as painful as possible for those arrested, federal prosecutors let their imaginations run wild.

Prosecutors are charging Tia Deyon for civil disorder for allegedly breaking the window of a city police vehicle in Mobile, Alabama. In order to argue that federal jurisdiction exists, the government used an unusually specious basis, even among the more egregious charges here. The government argued that her actions impacted interstate commerce because the larger group of protesters Pugh was a part of was moving in the direction of an interstate highway. The group never reached the highway, because local police preemptively shut down the on-ramps providing access to the highway. The government claims its own preemptive shut down of the on-ramps caused traffic delays and therefore impacted interstate commerce.

While the DOJ and the president said things about "violent protesters" (and unintelligible, unsupportable things about "dangerous antifa"), this was the reality of the situation. Even non-violent quasi-crimes were being exaggerated by federal prosecutors to ensure maximum punishment for minimal infractions.

Unsurprisingly, the data does not support the government’s claims of violence and intimidation. There are numerous cases where the federal government filed charges against people for conduct as minor as failing to obey an order from a federal agent, or for pointing a laser pointer in the direction of the police (not at a particular officer). In one Department of Justice press release characterizing the movement as hijacked by “violent agitators” based on 74 federalized criminal cases, 37 cases were for assaulting an officer—a misnomer when considering the offending conduct included things like pointing lasers at law enforcement or using, as federal agents themselves described, “flimsy” plastic shields in encounters with law enforcement; 17 cases were for failing to obey a lawful order, a nonviolent (in)action; and 11 of those cases involved charges for conduct so minor, the defendants were issued citation violations.

Predictably, most of these prosecutions originated in Portland, Oregon, the first place Donald Trump sent his federal strikebreakers police force to handle protests in the so-called "anarchist jurisdiction." And it wasn't just about putting people who believe black lives matter back in their place. The DOJ's selective prosecutions were also apparently politically-motivated, resulting in a different kind of overrepresentation in federal cases.

Of the 326 federal cases reviewed, 271 (83%) were brought in states with Democratic governors, with only 56 (17%) brought in states with Republican governors. [...] This disparity is even more stark when considering that, at the time of the uprising, the proportion of states with Republican leadership (54%) exceeded that of states with Democratic leadership (46%).

The DOJ barely bothered to disguise its desire to disrupt the Black Lives Matter movement and quell dissent targeting law enforcement agencies. The man running the country made no attempt at all to disguise his contempt for everyone who questioned law enforcement agencies or the tactics of their officers. The stats compiled here make it clear the DOJ engaged in targeted prosecutions meant to deliver maximum pain to those the former president considered to be political or ideological enemies.

Filed Under: anarchist jurisdictions, antifa, bill barr, black lives matter, doj, protests, selective prosecution

Appeals Court Shuts Down Kansas' 30-Year-Old Ag Gag Law

from the good-things-come-to-those-who-wait-until-2018-to-raise-a-challenge dept

Another "ag gag" law has been shown the door by the courts. The Tenth Circuit Court of Appeals has declared Kansas' "Farm Animal and Field Crop and Research Facilities Protection Act" (whew!) nothing more than a bunch of First Amendment violations trying to present themselves as a legitimate restriction on access to agricultural facilities. (via Courthouse News Service)

This law dates all the way back to 1990, but it's finally being shut down after a successful challenge by the Animal Legal Defense Fund. The ALDF sued in 2018, pointing out the law's obvious constitutional problems. The law criminalizes certain deception in the service of trespassing. Why trespassing couldn't have been handled by existing laws was never explained, but one should never underestimate legislators' desire to please some of their biggest local donors.

What the law sought to criminalize were investigations performed by the ALDF, which necessarily involved some form of deception to gain access to farms and dairies. How the ALDF does its work is detailed in the opening of the Tenth Circuit's decision [PDF]:

ALDF is a national non-profit organization that seeks in part to expose wrongdoing at animal facilities. ALDF conducts undercover operations through investigators who seek employment at animal facilities. Although these investigators do not falsify qualifications, they will not reveal their association with ALDF or their purpose in seeking a job; if asked directly, the investigators will falsely state they were not sent by an animal rights organization.

Once employed by an animal facility, investigators wear hidden cameras, often in violation of posted notices forbidding recording. An investigator may accept a supervisory position through which she might exercise authority over, or temporarily close off a portion of, a facility to record conditions without being caught. Although investigators do not take animals or property or intentionally cause any physical harm to the facility or animals, the investigators’ actions could uncover conditions warranting public officials’ seizing and removing animals. ALDF will seek that result if an investigator uncovers evidence ALDF believes warrants criminal investigation or removal of animals for their welfare.

Rather than do better as business owners and facility operators, new laws were requested and passed. According to the ALDF, it has not performed any of its investigations in Kansas because of the new law, which would subject investigators to criminal charges. It managed to secure an injunction from the district court after the state failed to even try to argue its law met the strict scrutiny standard for the regulation of speech. Nonetheless, it appealed the lower court's decision, resulting in it being told the same thing from the next level up.

Citing its own precedent, the Tenth Circuit says gathering information is protected speech, even if falsehoods are used to enable the information gathering.

“An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter.” Id. We held the restricted activities fell “within the ambit of the First Amendment.” Id. at 1197. Western Watersheds Project thus unambiguously holds that recording—and even more specifically, recording of animals or the conditions in which they live—is speech-creation and, consequently, is not mere conduct.

The parts of the law being challenged by the ALDF are unconstitutional, the court says.

Subsections (b), (c), and (d) of the operative section involve speech rather than merely conduct because they regulate what may be permissibly said to gain access to or control over an animal facility. Subsection (c) also directly proscribes recording, which we have held is speech-creating activity within the ambit of the First Amendment. All three subsections specifically forbid speech that is made with the intent “to damage the enterprise conducted at the animal facility.” §§ 1427(b), (c), (d). [...] Because the intent to damage the enterprise element present in all three subsections does not necessarily constitute the sort of harm required for false speech to be unprotected under Alvarez, we conclude the viewpoint discrimination on this basis subjects the relevant subsections of the Act to strict scrutiny. Kansas has not attempted to meet its burden under that standard; we therefore affirm.

[...]

The Act’s broad proscriptions include prohibiting speech, such as a statement made to obtain the consent of the owner of an animal facility to exercise control over it. The Act thus regulates not only what ALDF investigators may or may not do, but what they “may or may not say.”

While it may be true that ALDF investigations will eventually cause harm to these facilities, the harms are not directly related to the false speech. And, indeed, ALDF investigators have no intention of causing direct harm to these businesses' property. Merely being duped into granting access cannot be criminalized, because it directly limits the free speech rights that flow from that access. And the harms the law attempts to address are not harms flowing from that false speech. The harms that may result come from facts these businesses would rather not have publicly disseminated.

The damage to the enterprise intended from ALDF’s investigations does not flow directly from deceiving the animal facility owner into allowing entry. Damage occurs only if the investigators uncover evidence of wrongdoing and share that information, resulting in other actors choosing to take further actions. This is too attenuated from the false speech to be the sort of harm Alvarez is concerned with. It is not like defamation, where the false speech directly causes reputational harm; fraud, where the false speech causes someone to hand over a thing a value; or perjury, lies to the government, or impersonating a government official, where the speech itself harms our institutions. Rather, there are numerous further causal links between the false speech and the animal facility suffering damage.

Whatever legally cognizable harm is, it cannot be harm from protected, true, speech. The damage Kansas fears is that animal facilities may face “negative publicity, lost business[,] or boycotts.” Appellant Br. at 22. But these harms would be accomplished by ALDF disseminating true information—to the extent that information is injurious, it does not cause legally cognizable harm.

The court says this sort of harm is not only not criminal, it's legally-protected. The blowback from the exposure of wrongdoing is the fault of the wrongdoer, not the person who exposes it. In that sense, the law not only criminalizes outside investigations, but whistleblowing by employees, who may have to engage in deception to document wrongdoing.

And with that, the three challenged sections of the law are no longer valid. They're unconstitutional and the injunction forbidding the state from enforcing those sections is permanent. If local businesses want to avoid the harms that come from whistleblowing and undercover investigations, the best thing to do would be to end abuse and wrongdoing in their facilities. Allowing the state to shelter them from the consequences of their own wrongdoing is not only morally suspect, it's officially unconstitutional.

Filed Under: 10th circuit, 1st amendment, ag gag, free speech, kansas

Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit

from the opinion,-facts-still-protected-speech-because-duh dept

One America News (OAN) -- a "news" network apparently more "fair and balanced" than the extremely right-leaning Fox News -- sued MSNBC commentator Rachel Maddow for (factually) insinuating one of OAN's reporters had a side gig working for the Russian government. The OAN reporter, Kristian Rouz, also worked for Sputnik, the government-controlled Russian news outlet.

This report by Maddow came with the usual Maddow commentary, which included (protected!) opinions and the statement that Rouz was "literally paid Russian propaganda." This referred to Rouz's Sputnik work and cast serious shade on OAN's decision to bring the reporter on board with its network. A defamation lawsuit followed. And OAN lost.

The district court said the assertions were based on fact and everything else was protected opinion. The court signed off on MSNBC's anti-SLAPP motion, handing it a win. And with a the anti-SLAPP win came some fee-shifting, which led to OAN being ordered to pay more than $250,000 in legal fees.

OAN appealed. And it has lost again. The Ninth Circuit Court of Appeals says the lower court was right about everything. The Appeals Court [PDF] says California's anti-SLAPP law can be applied here, seeing as it closely aligns with federal options for dismissals and motions to strike. Having determined that, it makes quick work of OAN's appeal.

It is undisputed that Maddow’s challenged speech was an act in furtherance of her right to free speech. Therefore, the first step of the anti-SLAPP analysis is satisfied.

Undisputed.

And yet, OAN wants to dispute. Too bad, says the Ninth Circuit. There's no defamation here, something OAN seemingly conceded in its original complaint.

We agree with the district court’s conclusion that the broad context of Maddow’s show makes it more likely that her audiences will “expect her to use subjective language that comports with her political opinions.” Herring Networks, 445 F. Supp. 3d at 1050. It seems Herring agrees with this conclusion as well: Herring’s complaint characterizes Maddow as “a liberal television host,” and MSNBC’s cable programming as “liberal politics.” Although MSNBC produces news, Maddow’s show in particular is more than just stating the news—Maddow “is invited and encouraged to share her opinions with her viewers.” Id. at 1049. In turn, Maddow’s audience anticipates her effort “to persuade others to [her] position[] by use of epithets, fiery rhetoric or hyperbole.” Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980) (citation omitted). Therefore, the medium through which the contested statement was made supports Maddow’s argument that a reasonable viewer would not conclude the statement implies an assertion of fact.

It's all opinion, as OAN noted in its own complaint. And yet, it sued, claiming this opinionated host was slinging facts. The disputed facts can't even be disputed because the OAN reporter actually worked for a Russian government-funded news agency. That Maddow was undeniably pleased to be reporting and commenting on OAN's self-inflicted PR black eye makes no difference. If anything, it adds to Maddow's defense.

Maddow’s gleeful astonishment with The Daily Beast’s breaking news is apparent throughout the entire segment. Thus, at no point would a reasonable viewer understand Maddow to be breaking new news. The story of a Kremlin staffer on OAN’s payroll is the only objective fact Maddow shares.

And the court hands down this implicit reminder: when commenting on people likely to be litigious, show your work:

Maddow’s dialogue before and after the contested statement is solely a reiteration of the material in The Daily Beast article. At no point before the contested statement does Maddow “imply the existence of additional, undisclosed facts.” Instead, Maddow reports the undisputed facts and then transitions into providing “colorfully expressed” commentary.

Finally, the Ninth Circuit says even the procedural things OAN wanted to argue about (again) are mainly the network's own fault.

The district court did not abuse its discretion in dismissing the complaint without leave to amend because Herring never asked to amend, and if it had, amendment would have been futile. Moreover, contrary to Herring’s briefing, the district court’s rejection of Herring’s evidence, given the applicable Rule 12(b)(6) analysis, is not inconsistent with its conclusion that such evidence would not make a difference. Evidence can be both improperly proffered and unhelpful.

And that ends this case unless OAN thinks the Supreme Court is going to be more receptive to its arguments. Those arguments are, basically, opinion OAN doesn't like shouldn't be protected speech, and people shouldn't be allowed to report on undisputed facts that make OAN look bad. Hardly the sort of thing that's likely to upset Supreme Court precedent and long-held First Amendment protections for both opinions and factual statements.

Filed Under: 1st amendment, anti-slapp, california, defamation, free speech, kristian rouz, opinion, rachel maddow
Companies: msnbc, oan, sputnik

Appeals Court Says Iowa's Ag-Gag Law Is About 50 Percent Constitutional

from the keep-this,-strike-that dept

Opacity efforts backed by industries that would rather not allow the public to see how their food is really made have been mounted in several states, hoping to criminalize things like corporate whistleblowing or investigative journalism. Of course, these legislative efforts generally make no mention of these terms, hiding their true intent behind claims of seeking to protect businesses from "bioterrorism" or "trespassing."

Ignoring the fact that there are plenty of statutes already capable of addressing terrorist acts and trespassing, these laws have sought to prevent photography of farms or undercover investigators from being hired by unsuspecting farmers.

Iowa's ag-gag law does at least acknowledge the point is to hide abuse of animals or other questionable business practices from outsiders. Its legislative backers have publicly acknowledged the law is designed to "stop [...] groups that [...] give the agriculture industry a bad name." Obviously, this isn't an acceptable justification for violating people's First Amendment rights, as the state learned when a federal court declared the law unconstitutional in January 2019.

The state appealed. And it has managed to claw back part of its gag law. The Eighth Circuit Court of Appeals has overturned [PDF] part of the district court's decision. But it has upheld the other part, which means at least some of the law written to protect agriculture businesses from criticism can't be enforced.

The Appeals Court says that both challenged provisions affect free speech.

Both the Access Provision and the Employment Provision constitute direct regulations of speech. The Access Provision targets false “pretenses,” Iowa Code § 717A.3A(1)(a), and the Employment Provision targets false “statement[s],” id. § 717A.3A(1)(b). Pretenses may consist of nonverbal conduct, but that conduct constitutes “pretenses” only because it expresses information. “A law directed at the communicative nature of conduct” is treated like “a law directed at speech itself.” Texas v. Johnson, 491 U.S. 397, 406 (1989) (emphasis and internal quotation omitted). Thus, the Access Provision’s regulation of “pretenses,” like the regulation of “statements,” constitutes a direct regulation of speech. Both provisions also target expression for restriction on the basis of its content. Each prohibits expression that is “false,” and an observer must examine the content of the speech to determine whether it is prohibited.

False statements can still be protected speech. But in this case, some statements are not protectable if they're used to further another civil or criminal violation.

We consider first the Access Provision, which provides that a person is guilty of agricultural production facility fraud if he “obtains access to an agricultural production facility by false pretenses.” Iowa Code § 717A.3A(1)(a). The State argues that this provision is consistent with the First Amendment because it prohibits exclusively lies associated with a legally cognizable harm—namely, trespass to private property. We agree with this conclusion.

This determination may be correct, but that doesn't make the law any less extraneous. The state already has laws on the books criminalizing trespassing and allowing private citizens to refuse access to their property. Given that fact, it would seem the state already gives ag businesses a way to handle this problem -- one that doesn't criminalize false statements and (possibly) tread a little heavily on the First Amendment.

The Appeals Court finds the other provision unconstitutional, though. There's a way to handle falsehoods related to securing goods (in this case, employment) but Iowa's law is far too broad.

The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision. As such, the statute is not limited to false claims that are made “to secure” an offer of employment; it allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium.

[...]

Given the breadth of the Employment Provision, it proscribes speech that is protected by the First Amendment and does not satisfy strict scrutiny. Insofar as the State has a compelling interest in preventing false statements made to secure offers of employment, a prohibition on immaterial falsehoods is not actually necessary to achieve the interest. There is a less restrictive means available: proscribe only false statements that are material to a hiring decision.

This means the state will need to repeal and rewrite this portion of its ag-gag law. And that means the law will be a little less useful to the industry lobbyists who have pushed to criminalize the acts of journalists and activists who seek to expose unsavory practices. But the decision also creates a roadmap for legislators to use to shut down enemies of their deep-pocketed friends.

Filed Under: 1st amendment, 8th circuit, ag-gag, free speech, iowa, protests

Nassau County Executive Vetoes Bill That Would Punish People For Making Cops Feel Bad

from the but-an-underlying-problem-remains dept

Good news in Nassau County, New York. The stupid law that turned not being sufficiently deferential to cops (or other first responders) into a quasi-hate crime has been rejected by the head of Nassau County's government, accompanied by a message to the stupid legislators who passed it. (via Michael Vario)

Nassau County Executive Laura Curran on Tuesday vetoed a bill to give police and other first responders the right to sue under the county Human Rights Law when they face "discrimination" from protesters or others.

[...]

In her veto letter to lawmakers, Curran acknowledged the "genuine concern" of community members "that the law would intimidate free citizens from engaging in peaceful demonstrations without fear of retaliation."

Citing an opinion from state Attorney General Letitia James, Curran pointed out the obvious: the new bill -- which criminalized "harassing" first responders (but really mostly cops) -- didn't have a chance in hell of surviving a constitutional challenge, especially when it tied increased legal penalties to acts occurring during "riots" (even if the person charged was not actually rioting).

Curran continued: "There is no consensus among elected officials and the public that this current legislation is necessary, carefully crafted and without negative consequences."

Well, there was enough of a consensus the bill was passed by a margin of 12-6. That the consensus is wrong about the bill's necessity and the quality of the craftsmanship is the larger problem and it indicates there will be similar proposals in the future, especially since local law enforcement can't seem to be disabused of the notion that a career choice isn't an immutable characteristic worthy of protection from discrimination.

Of course, police unions are still complaining about this completely expected turn of events.

“First responders are sometimes treated as second class citizens, Jennifer,” Nassau PBA board member Thomas O’Reilly told CBS2’s Jennifer McLogan. “We feel very hurtful about that. We thought this was a good bill.”

Odd that a cop rep would admit to "feeling hurtful" about events that didn't go their way. Seems inadvertently revealing.

But notice that the only first responders unions complaining are those representing cops. People have no problem with EMTs and firefighters -- first responders who almost never subject people to excessive force or rights violations. The whining from the Police Benevolent Association continues:

“We shouldn’t be spit on. We shouldn’t have water thrown on us. We shouldn’t be intimidated and harassed and people blowing smoke in our face,” O’Reilly said.

OH MY GOD. How do your officers even cope with actually dangerous criminals, who are capable of far more than making them feel wet or otherwise mildly uncomfortable?

The bigger problem is a law already on the books which will encourage legislators who think the PBA makes good points to keep plugging away at expanding protection of police officers at the expense of the rights of the people they serve.

The Legislature in 2019 extended protections against discrimination in housing, employment, and public accommodations to veterans and first responders.

That's the foot that will remain in the legislative door until that one finally comes off the books. As long as it remains, it will be exploited by opportunists who somehow believe cops just don't have enough power or protections.

Filed Under: 1st amendment, discrimination, free speech, nassau county, police