Australian Federal Police Raid Journalist's Home Over Publication Of Leaked Documents

from the cool-cool-cool dept

The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I'm getting something in my earpiece… it appears this is not just an Australian phenomenon.)

The Australian federal police have raided the home of News Corp Australia journalist Annika Smethurst investigating the publication of a leaked plan to allow government spying on Australians.

On Tuesday police executed a warrant investigating the “alleged publishing of information classified as an official secret” which they said had the potential to undermine Australia’s national security.

Her employer called it a "dangerous act of intimidation," which is exactly what it is. The government may be claiming this is about protecting the nation, but if it has a problem with leakers, it should maybe take a look at its leakers first, rather than punish journalists for engaging in journalism. Or -- and I'm just throwing this out there -- maybe the government shouldn't engage in secret domestic surveillance or other acts that would provoke public outrage if they were exposed.

Unfortunately, Australia really doesn't have a shield law to protect journalists, leaving them only with the dubious option of defending "unauthorized disclosures" as being made in the public interest. Even if nothing comes of this, the message has been sent: publishing leaked documents will bring the heat -- the kind of heat that leaves a chill everywhere it's been.

The Australian government firmly -- and with the force of law -- believes anything it thinks should be secret should stay a secret. Smethurst wasn't the only journalist targeted by the government for reporting on supposed secrets.

Just hours after the Australian Federal Police raided the home of high-profile journalist Annika Smethurst, broadcaster Ben Fordham has revealed he’s also being targeted for his reporting.

The 2GB Drive presenter and Sky News contributor revealed he was the subject of a probe over his story yesterday about six asylum seeker boats attempting to reach Australia.

An hour after his report went to air yesterday, his producer was contacted by an official from the Department of Home Affairs to advise the material was “highly confidential”.

“In other words, we weren’t supposed to know it,” Fordham told listeners today.

Right now, the investigation is the DHA's. But it has already informed Sky News it will likely be turning this over to the federal police as a criminal investigation. That's probably because Fordham has refused to cooperate with the Home Affairs investigation and name his source. I'm sure the AFP feels it can suss out the leak source by doing what it did to the News Corp journalist: raid their home and take all of their electronics.

The Australian government is pretending this is normal. The Prime Minister has refused to offer a coherent comment and the usual things are being said about national security by the agencies involved in these investigations. But the truth of the matter is this is not normal. According to the New York Times' report on the raid, this is the first time in more than ten years the Australian government has gone after a journalist for publishing sensitive documents.

The AFP and DHA want it to appear normal, but it isn't. They know it. And they're counting on this combination of breezy national security platitudes and heavy-handed tactics to discourage further reporting on things the government would rather citizens remained blissfully unaware of.

Filed Under: annika smethurst, australia, ben fordham, chilling effects, journalism, raids, surveillance

Sheriff's Deputy Sued After Arresting Man For Criticizing Him On Facebook

from the serve,-protect,-bruise-easily... dept

A good way to get yourself sued if you're a law enforcement officer is to treat a heated Facebook post like it's an actual crime. Law enforcement officers remain the most delicate of snowflakes, unable to let a citizens blow off verbal steam without effecting arrests for contempt of cop. This case involves digital contempt, but it was treated as though the plaintiff was up right in the deputy's face and screaming.

Plaintiff Jon Goldsmith was attending an outdoor festival in Corning, Iowa when he saw deputies pull over Ed Avila for a supposedly faulty brake light. This turned out to be pretextual stop, as stops for minor traffic violations often are. This is from Goldsmith's lawsuit [PDF], filed with the assistance of the ACLU of Iowa. (I will preserve the misspelling of brake light which, unfortunately, is found throughout the lawsuit.)

After informing Avila of the reason for the stop and asking for everyone’s identification, Dorsey informed Avila he would be having his partner, Deputy Evan Ruse, write a warning ticket to fix the break light.

Dorsey then told Avila that he would be running his K9 or “drug dog” around Avila’s vehicle.

Goldsmith watched as Dorsey tapped the bed of Avila’s pick-up right before his K9 jumped into the bed.

Dorsey informed Avila that the K9 hit on the truck.

At this point, Dorsey ordered everyone out of the vehicle and proceeded to pat everyone down and search the individuals.

Goldsmith then observed Dorsey make Avila and his passengers stand on the side of the road while Dorsey searched the vehicle.

Dorsey discovered no contraband or anything else of note in Avila’s vehicle but during the search, Dorsey kept uttering that he was getting a whiff of something.

At that point, Dorsey and Ruse gave Avila a ticket for the break light and told him that he was free to go.

As they began to walk towards the street festival, Goldsmith observed Dorsey and Ruse walk across the street and for reasons unknown and questionable to Goldsmith, Dorsey then body slammed a gentleman named Mike Arthur to the ground.

The fishing expedition that occurred at the Avila traffic stop -- along with the perceived abuse of another witness of the stop -- angered Goldsmith. As most of do, he turned to social media to express his feelings. He commented on the Adams County Sheriff's Office's post of Mike Arthur's mugshot with this:

Ya when they run the drug dog round said car/truck and they make a fake claim the dog hit yes he hit after you tap where you want him to jump on then call it a hit and NOTHING shows up and they look like total fucking lying POS they/he gets pissed walks across main street and body slams THIS bystander that was giving them a hard time guess they dont have any balls to take shit talk they get BUTTHURT YES YOU DORSEY you fucking pile of shit hope this guy hires George and sues the county and you will be the 1st to go Dumbass Dorsey WHY you run the dog getting pulled over for so called fake claim you call a cargo light a brake light you STUPID sum bitch so why run the dog for a traffic stop of light out? THAT IS FUCKING BULLSHIT what reason? when you get shit canned i ll hire ya to walk my dog and PICK up his shit

It may lack eloquence but it does drive Goldsmith's point home effectively: the traffic stop, the drug dog, the attack on Mike Arthur… all bullshit. And every word of this Deputy Dorsey-aimed rant is protected speech. And it's the best kind of protected speech: criticism of the government as personified by the Adams County officer.

Neither Deputy Dorsey nor Sergeant Paul Hogan saw it that way. Unaware of the contours of the First Amendment -- or perhaps just not caring -- they filed a criminal complaint against Goldsmith for third-degree harassment.

Sergeant Hogan's sworn statement in defense of this bullshit charge is inadvertently hilarious, as all-caps, verbatim recountings of personal slights often are:

ON 7-29-18 AT APPROXIMATELY 0330 JON GOLDSMITH MADE A THREATENING POST ON FACEBOOK IN WHICH HE SINGLED OUT CORY DORSEY MULTIPLE TIMES. IN THE FACEBOOK POST GOLDSMITH REFERRED TO DORSEY AS A "FUCKING PILE OF SHIT." GOLDSMITH ALSO REFERED TO DORSEY AS A "STUPID SUM BITCH." GOLDSMITH ENDED THE FACEBOOK POST WITH "WHEN YOU GET SHIT CANNED I'LL HIRE YOU TO WALK MY DOG AND PICK UP HIS SHIT."

Unfortunately for these officers, the court and the plaintiff know the law better than they do. As Goldsmith's lawsuit points out, there's a case directly on point in that state's top court saying this sort of criticism is protected by the First Amendment.

On September 21, 2018, Attorney Mailander filed a Motion to Dismiss the charges against Goldsmith as violative of the First Amendment.

Among other things, Mailander’s Motion cited to the case State v. Fratzke, 446 N.W.2d 781 (Iowa 1989), directly on point, in which the Iowa Supreme Court held that the state could not justify the same harassment charge Goldsmith was charged with against a motorist who wrote a letter to a highway patrolman who had stopped him for speeding, based on the letter’s statement that the officer was a “liar,” a “thief disguised as a protector,” that the arrest was “legalized highway robbery,” that the officer “just enjoys stealing people’s money so he can show everyone what a red-necked mother-fucker he is,” and expressing the letter-writer’s hope that the officer would “have an early and particularly painful death hopefully at the side of the road somewhere he’s robbing someone else.” As the Court explained, “[o]ur Constitution does not permit government officials to put their critics, no matter how annoying, in jail.”

The court agreed with Goldsmith's motion and dismissed the charge. But some damage had already been done. After the charge was filed against him, Goldsmith emailed a screenshot of the post to his wife, deleted his post, and deactivated his Facebook account. He has steered clear of Corning, Iowa where the traffic stop he criticized took place, and saw a physician who noted Goldsmith's anxiety and increased blood pressure.

The lawsuit also points out the Adams County Sheriff's Office seems particularly susceptible to "mistaking" criticism for criminal acts. Deputies have arrested people for cursing at them and giving them the finger.

The lawsuit alleges false arrest and First Amendment retaliation. It seems pretty clear the deputies wanted to punish Goldsmith for lighting them up on Facebook and dug around until they found an abusable law to use against him. Unfortunately, Iowa's harassment statute is pretty damn abusable:

Communicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose and in a manner likely to cause the other person annoyance or harm.

So, there's a couple of bars Goldsmith will have to clear. The first is not specific to Iowa. Courts have held for years that law enforcement officers aren't expected to be experts in the laws they're enforcing. Yeah, it makes very little sense, but I guess we don't want our officers ruminating over appellate level splits on edge cases during "tense, uncertain, and rapidly-evolving" situations.

Then we have the law itself, which lends itself to the reading that people can be arrested simply for "annoying" law enforcement officers and Goldsmith's Facebook post certainly fits the common definition of annoying.

The wild card is the court and whether it will recognize this for the retaliation it is. Deputies were briefly publicly shamed for turning a traffic stop into a roadside fishing expedition and -- instead of doing nothing -- they did this.

Filed Under: adams county, adams county sheriff's department, arrest, corning, cory dorsey, ed avila, evan ruse, free speech, iowa, jon goldsmith, law enforcement, paul hogan

Shallow Fakes: Why Facebook Was Right Not To Delete The Doctored Video Of Nancy Pelosi

from the defending-free-speech dept

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.

The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently someone created a distorted video of House leader Nancy Pelosi.  Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.

The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, "Everyone lies, nobody minds." Well, everyone minds the other team’s lies and somehow ignores their own.

Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.

So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.

But people do lie, and the lies can have terrible consequences. True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?

With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is... more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.

But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pellosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.

But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.

Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.

But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.

John Samples is a Vice President at the Cato Institute

Filed Under: content moderation, free speech, nancy pelosi, shallow fakes
Companies: facebook

Supreme Court OKs Retaliatory Arrests For Engaging In Protected Speech

from the a-police-state-is-a-team-effort dept

The Supreme Court has declared it's cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we've been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they're wrong about can be salvaged by the good faith exception.)

In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here's the background, as summarized in the Supreme Court's opinion [PDF]:

Respondent Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during “Arctic Man,” a raucous winter sports festival held in a remote part of Alaska. According to Sergeant Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said “bet you wish you would have talked to me now.”

In effect, Trooper Nieves was arresting Bartlett for talking about not talking to the police and, I guess, for not talking to Nieves when Bartlett was telling festival attendees to not talk to Trooper Nieves. Trooper Weight is a boxing tier I'm not familiar with.

The Ninth Circuit Appeals Court agreed with Bartlett, finding that probable cause does not excuse retaliatory arrests. The government protested, stating the opposite. Unfortunately, the Supreme Court agrees with the government insistence that retaliatory arrests are excusable with probable cause. In addition, it says that plaintiffs in these cases bear the burden of proving other people haven't been arrested if they plan to make assertions about a law enforcement officer's actions.

Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations—whereas such arrests were privileged only in limited circumstances when §1983 was adopted—a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.

So… bring data, I guess.

There's a whole lot more to this opinion than the majority's. There's plenty of dissent. Justice Gorsuch both concurs and dissents, but gets right to the point when it comes to the legal ramifications of this ruling.

Mr. Bartlett contends that the officers’ retaliation against his First Amendment protected speech entitles him to damages under 42 U. S. C. §1983. For their part, the troopers insist that the fact they had probable cause to arrest Mr. Bartlett for some crime, or really any crime, should be enough to shield them from liability.

That is what the government argued. And that's exactly what was granted: literally any arrestable offense trumps citizens' First Amendment protections. This works out all too well for the government.

As Frank Zappa said, "The United States is a nation of laws, badly written and randomly enforced." Here's how Gorsuch puts it:

Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Gorsuch goes on to point out the statute governing lawsuits like these (§1983) -- civil suits alleging violations of rights by government employees -- says nothing about probable cause. All it says is that civil servants can be held personally liable for depriving citizens of "any rights, privileges, or immunities secured by the Constitution." Certainly, probable cause for an arrest might defeat Fourth Amendment claims since that's why there's a probable cause requirement for arrests in the first place, but it shouldn't be enough to instantly defeat claims of First Amendment retaliation. Applying this probable cause tests allows officers to get away with something they shouldn't.

The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.

Justice Ginsburg's partial dissent also says this country has too many laws that can be too easily abused to establish precedent that any old probable cause will do.

Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked.

Sotomayor's dissent aligns itself with Gorsuch and the majority's mysterious decision to rewrite §1983 on the fly to add probable cause to the long list of ways government employees can dodge being held responsible for rights violations. Had the court restrained itself to a narrow decision and not placed an additional evidentiary burden on plaintiffs, this might have been OK. But it didn't and in reaching this broader conclusion, it has opened the door for SCOTUS-sanctioned abuse.

Were it simply an unorthodox solution to an illusory problem, the standard announced today would be benign. But by rejecting direct evidence of unconstitutional motives in favor of more convoluted comparative proof, the majority’s standard proposes to ration First Amendment protection in an illogical manner. And those arbitrary legal results in turn will breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly. These are costs the Court should not tolerate.

The standard the court has erected demands plaintiffs to provide evidence they are unlikely to ever obtain.

[T]he majority suggests that comparison-based evidence is the sole gateway through the probable-cause barrier that it otherwise erects. Such evidence can be prohibitively difficult to come by in other selective-enforcement contexts, and it may be even harder for retaliatory arrest plaintiffs to muster. After all, while records of arrests and prosecutions can be hard to obtain, it will be harder still to identify arrests that never happened. And unlike race, gender, or other protected characteristics, speech is not typically sorted into statistical buckets that are susceptible of ready categorization and comparison.

The impossibility of meeting this evidentiary bar, along with the broader proclamation that probable cause beats the First Amendment in nearly every situation, pretty much dead-ends future retaliatory arrest lawsuits. Cops may not be the best students of the law, but they're pretty quick to pick up on legal declarations that excuse abuses of their power.

Whatever momentum has been gained by legal decisions supporting the right of citizens to film police officers has just been undercut. We've already seen years of bullshit arrests for filming cops. This decision says officers are free to continue violating First Amendment rights if there's any conceivable law someone might be breaking while engaging in "protected" speech. We have too many laws on the books to give law enforcement officers this much deference in enforcing them, especially when Constitutional rights are on the line.

Filed Under: 1st amendment, 4th amendment, neil gorsuch, probable cause, retaliatory arrests, russell bartlett, sonia sotomayor, supreme court

And Now The Prime Minister Of Canada Is Threatening To Fine Social Media Companies Over 'Fake News'

from the please-stop dept

Oh good. Now Canada wants in on the "fake news" action.

Canada is introducing a digital charter that will impose "meaningful financial consequences" on tech companies if they don't reign in misinformation on their platforms, Prime Minister Justin Trudeau said on Thursday.

Trudeau made the announcement during a speech in Paris at the Viva Technology conference. He said that social media companies have “failed their users” and announced the Canada will establish a new digital charter aimed at universal access, countering online extremism and misinformation, and transparency.

Not included in this announcement:

• What "misinformation" means in this context
• How fines will be handed out
• What collateral damage this will cause to free expression
• Why any of this is necessary

Apparently, this all flows from the Christchurch shooting in New Zealand. On top of "eradicating terrorist and violent content… once and for all," the Canadian government will apparently be punishing tech companies for failing to eradicate anything the Canadian government believes isn't real. The phrase "meaningful financial consequences" was used.

Perhaps the biggest misconception government officials hold about social media platforms is that moderation is easy. They find a few examples of stuff they think should be banned and they assume anyone can do the same thing, even when dealing with millions of uploads a minute. They also believe moderators should instinctively recognize this content immediately, no matter the context, and act to remove it before it's seen by others.

Something as nebulous as "fake news" is going to be a lot harder to moderate than "terrorist and violent content." Even the latter has its own issues, as much of what's considered "terrorist and violent" can also be newsworthy or crucial to law enforcement investigations.

"Fake news" tends to be whatever top government officials declare it is. If that's all it takes, tech companies will be fined as often as grandstanders open their mouths. As we've seen here in the US, President Trump can't go more than a day without calling someone or something "fake news." If that same hostility towards the press is shown in Canada -- and it's not inconceivable someone like Trump could become Prime Minister -- tech companies will have two choices: pay fines constantly or subject their users to a ton of moderation collateral damage.

This won't make things better for Canadians. And it won't do them any favors when it comes to them expressing themselves online. Demanding more moderation using meaningless buzzwords is a great way to open up a portal to moderation hell. If the Canadian government can find a better approach to tackling "fake news" than perpetually fining social media companies, it probably should excuse itself from the discussion.

Filed Under: canada, disinformation, fake news, fines, free speech, justin trudeau, social media

CBS Happily Engages In Censorship To Placate China

from the streisand-effect-supercombo dept

CBS isn't exactly known for making coherent decisions. You'll probably recall the company sued Dish Network for simply developing DVR ad-skipping technology consumers asked for. It then went so far as to ban its subsidiary CNET from giving Dish an innovation award for the technology at CES. There was also that time the company sued the public domain for simply existing, or those numerous times it obnoxiously hassled Star Trek fans for their fan service.

But this week the company did something exceptionally idiotic, even for CBS. Over at the company's CBS All Access streaming video service, some of the company's TV shows have taken some additional liberties traditionally restricted on broadcast television. Characters on its "Star Trek: Discovery" spin off, for example, now occasionally say "fuck." And its show "The Good Fight," a spin off of its broadcast show "The Good Wife," occasionally takes some more pointed stances politically than its more ambiguously scripted predecessor.

One recent episode featured a 90-second animated musical segment written by Jonathan Coulton, poking fun at Chinese censorship, the country's terrible treatment of dissidents, the 1989 Tiananmen Square Massacre, and President Xi Jinping's behavior. CBS's response? To try and completely censor the musical segment:

"...less than two weeks before the episode was going to air, CBS told the Kings to cut the animated sequence. In response, the co-creators threatened to stop writing the show. In a subsequent conversation, the two sides reached what CBS called a “creative solution”: the Kings wouldn’t quit, but CBS would agree to display that placard where the short was meant to go."

After showrunners Robert and Michelle King threatened to quit, CBS backtracked slightly, agreeing to run an 8-second blackout simply stating that "cbs has censored this content" without really explaining why to the viewer. And while CBS has appeared to try and suggest it was concerned about the safety of its employees in China, a just as likely motivation is CBS executives didn't want to lose money by upsetting the Chinese government. Coulton, for his part, told the NY Times he found the whole saga disappointing but ironic:

"Mr. Coulton said he bore no ill will toward CBS, understanding that as a large multinational corporation, it had some “tough choices to make.” Still, the whole situation is the “definition of irony,” he said.

“The song ends with me saying, ‘I hope this song is banned in China,’ ” Mr. Coulton said. “Now it’ll never get the chance."

As any dedicated Mike Masnick fan knows, the censorship will only ensure that the musical segment sees much broader circulation. After all, the segment originally would have appeared only on CBS All Access, a streaming service with a fairly limited reach by television standards. But the decision to censor the segment now ensures it's likely to be a viral hit once it's inevitably released online and circulated by folks simply wondering what all the fuss is about.

Filed Under: cbs all access, censorship, china, jonathan coulton, the good fight
Companies: cbs

Federal Judge Says Flashing Headlights To Warn Drivers Of Hidden Cops MIGHT Be Protected Speech

from the DISRUPT-SPEED-TRAPS dept

Law enforcement officers tend to frown on citizens interfering with their revenue generation. This has led to a number of First Amendment lawsuits from people arrested for warning others about [check notes] the existence of police officers in the vicinity.

One citizen was told as much when he was arrested for holding up a sign reading "Cops Ahead." One cop kept on script, referring to the man's actions as "interfering with an investigation." It wasn't an investigation. It was a distracted driving sting. The cop actually hauling him to the station was more to the point, telling the man he was arresting him for "interfering with our livelihood." First Amendment violation or felony interference with a business model? Why not both?

A lawsuit was filed in 2018 seeking a declaration that honking a car's horn is protected expression. And, all the way back in 2011, a class action lawsuit was filed over citations and arrests for flashing headlights to warn drivers of unseen officers.

A federal judge has decided -- albeit not very firmly -- that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech -- something cops would be better off not trying to punish. (via Volokh Conspiracy)

Andrew Obriecht passed a speed trap outside Caledonia, Wisconsin. After passing it, he flashed his headlights to warn oncoming drivers to slow down. He was then pulled over by a state trooper, who issued him a citation for violating a state statute that doesn't really appear to fit the alleged crime:

347.07  Special restrictions on lamps and the use thereof.

(1) Whenever a motor vehicle equipped with headlamps also is equipped with any adverse weather lamps, spotlamps or auxiliary lamps, or with any other lamp on the front thereof projecting a beam of intensity greater than 300 candlepower, not more than a total of 4 of any such lamps or combinations thereof on the front of the vehicle shall be lighted at any one time when such vehicle is upon a highway.

(2) Except as otherwise expressly authorized or required by this chapter, no person shall operate any vehicle or equipment on a highway which has displayed thereon:

(a) Any color of light other than white or amber visible from directly in front; or

(b) Any color of light other than red on the rear; or

(c) Any flashing light.

Yeah… that's a stretch. Obriecht sued, claiming this citation was retaliation against protected speech -- namely, the brief flashing of his headlights to warn other drivers of a speed trap.

The government argued that it wasn't. In fact, it argued that Obriecht's light flashing was not protected because it "facilitated speeding by others." This is a super hot take. This argument basically says that anyone who encourages others not to break the law is "facilitating" the very crime they're warning them not to engage in. I guess it's time to open up our conspiracy laws.

The defendants tried to equate warning drivers to slow down to warning criminals of an impending law enforcement raid. The court says it isn't even close.

The crux of defendants' argument is that much like warning others about intelligence operations or an impending police raid, the message that Obriecht conveyed helped others commit an illegal act without getting caught. However, at most, Obriecht's actions may have prevented the State Patrol from apprehending a few would-be speeders.

[...]

As the Supreme Court has made clear, "the prospect of crime . . . by itself does not justify laws suppressing protected speech." Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (citing Kingsley Int'l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) ("Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech" (internal quotation marks and citation omitted)). See also NAACP v. Claiborne Hardware, 458 U.S. 886, 909-10 (1982) (knowingly publishing names of people who were not complying with boycott was constitutionally protected, even though some non-participants had been violently attacked and publication clearly could facilitate such attacks).

The judge also points out two state courts have held that headlight flashing is protected speech.

In addition, at least two state circuit courts also have found that drivers have a constitutional right to flash their headlights. See State of Oregon v. Hill, Citation No. 034117 (Jackson Cty. (Ore.) Justice Ct. Apr. 9, 2014) (flashing vehicle headlights to warn others about presence of law enforcement is protected free speech under state constitution); State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting First Amendment defense to charge of knowingly interfering with officer where defendant flashed headlights to warn oncoming motorists about speed trap).

The court doesn't go so far as to declare this activity protected, but it has expressed its doubts about the state's arguments this speech isn't protected. The judge has called out the bullshit expressed by the defendants seeking to turn headlight flashing into a criminal conspiracy by pointing out the defendants, at best, lost a little revenue when Obriecht send uncoded messages to oncoming drivers. This case may ultimately result in a definitive declaration that warning drivers of speed traps is protected speech, but it's not quite there yet.

Filed Under: 1st amendment, andrew obriecht, flashing headlights, free speech, speed traps, wisconsin

Just Because The Rest Of The World Doesn't Have A 1st Amendment, Doesn't Mean It Can Trample Online Speech

from the slow-down-regulators dept

Cecilia Kang recently had a good article in the NY Times about Mark Zuckerberg's bizarre call for governments to take over content moderation on internet platforms. Lots of people pointed out that this is obviously unconstitutional under the First Amendment, and wondered how any lawyer at Facebook could have signed off on the statement. According to Kang, Facebook is quietly arguing that it really only meant for that "regulate me!" claim to be implemented outside the US:

In a flurry of calls and emails to regulators, consumer groups and think tanks — as well as in person, at a weekly breakfast gathering of influential conservatives — the operatives said Mr. Zuckerberg was not encouraging new limits on speech in the United States. His target was mostly overseas regulators, they said, and he has other ideas for Washington.

The article notes -- as people always remind me in the comments when I talk about free speech outside the US -- that much of the rest of the world views free speech protections differently than we do in the US. That should be fairly obvious from the string of articles we've had about other countries ratcheting up speech regulations on the internet in ways that would be obviously unconstitutional if tried in the US. The Kang piece highlights this by noting that those other countries are much less concerned with free speech:

Britain, Germany, Australia, New Zealand and India have adopted or are considering laws that require stricter content moderation by tech platforms. But none of them need to work around the culture of free speech protections, embodied by the First Amendment, in the United States.

There are two responses to this. The first, simply, is that just because other countries might not view freedom of expression in a similar light as the US does, that doesn't mean that people shouldn't continue to fight for similar levels of protection, in part by highlighting how when you move away from it, the most marginalized in society are often the first to have their voice, their criticisms, and their activism stifled.

But there's a larger point, raised by the UN's Special Rapporteur on Freedom of Expression, David Kaye, who notes in a detailed Twitter thread that just because other parts of the world might not have a full First Amendment, that doesn't mean they're not obligated to uphold freedom of expression principles, which many of these laws likely violated. A lightly edited transcription is here:

These governments are bound by human rights constraints/protections - such as those in their own laws, the European Convention on Human Rights or the International Covenant on Civil and Political Rights.... The European Court of Human Rights has constrained government behavior when it comes to free expression restrictions. these aren't 1st am constraints but they are serious & have bite.

He also notes that:

...under human rights law... it's also critical that speech regulations be "provided by law". That means adopted by normal procedure, precise, not leaving too much discretion in government.

In other words, while the rest of the world may be rushing in to try to regulate speech on the internet, they may not be as free to do so as they think.

That doesn't mean, of course, that they won't try -- and that those tries may create huge messes for many years before things get sorted out in court. But to assume that the US is the only place in the world that respects freedom of expression is not accurate.

Filed Under: 1st amendment, censorship, free speech, human rights

Austrian Government Wants To Outlaw Online Anonymity

from the it's-just-going-to-hurt-those-most-in-need-of-protection dept

In response to who knows what -- maybe just a desire to make it easier for the government to track/investigate internet users -- the Austrian government wants to eliminate online anonymity in its country by 2020. The proposed law says pseudonyms are still allowed, but they'll be linked to accounts that require users to provide site operators with a ton of personal information.

Those in Austria wishing to post a comment on the internet in the future will no longer be able to do so anonymously. According to the Government's new draft law on "Diligence and Responsibility on the Web," users want to provide their first name, last name and address to platform operators. In the event of an investigation, operators would have to provide information to government agencies or, in some cases, to private persons in cases of insult or defamation.

How this will be accomplished is anyone's guess. One theory is this will rely on two-factor authentication linking users' accounts to their phones. In Austria, the purchase of a phone or SIM card requires the purchaser to turn all of this information over to the retailer. More security but less privacy, I guess.

This law would apply to any site that has more than 100,000 registered users or exceeds 500,000 euros in annual revenue. Good thing there's that much revenue involved, considering violators could be hit with 500,000 euro fines, which rise to one million if there are repeated violations.

The deployment and enforcement logistics are only part of the problem. The other hurdle the proposal faces is being upheld by the European Commission, which may take a dim view of a law that does so little to protect the privacy of internet users.

Tech law expert Lukas Feiler from the Baker McKenzie law firm believes that the draft law is a violation of the EU e-commerce directive. Feiler recently told STANDARD that service providers on the web only have to the laws of the country in which they are located. As such, Austria may not impose laws that are stricter than those in an operator's country of origin.

The law also imposes more costs on site operators, requiring sites to staff a liaison position -- one that must be receptive to government requests 24/7. This includes sites not located in Austria but which have enough registered users -- or earn enough revenue from Austrian users -- to be subject to the law's coverage. There likely will have to be additional compliance personnel hired to ensure the law is being followed and vet info provided by users registering for accounts.

And to what end? The proposal's backers suggest the single beneficiary of this proposed law will be the Austrian government, which will find it much easier to unmask internet users for purposes of law enforcement. The public receives no benefit, unless making it easier to engage in defamation lawsuits can be considered a net benefit for the public at large.

Opponents of the law see it for what it is: an attack on the free and open exchange of ideas under the protection of anonymity. This law will hit the most marginalized members of Austria hardest and make it prohibitively expensive for local sites to continue to do business in the country. There's no societal good being proposed here, just a way to give the government a bit more control of the greatest communication tool ever invented.

Filed Under: anonymity, austria, free speech, online anonymity, privacy, security

Appeals Court: Idiot Cop Can Continue To Sue A Protester Over Actions Taken By Another Protester

from the so-much-for-protected-rights-and-personal-responsibility dept

In October 2017, a Louisiana federal court tossed a lawsuit brought by an anonymous cop against:

1. Activist DeRay McKesson, who spoke at the Baton Rouge demonstrations.

2. Black Lives Matters -- a name used by several concurrent movements to protest police violence against blacks

3. A Twitter hashtag

This lawsuit was dismissed with prejudice, with the judge pointing out no amount of rewording could salvage this cop's attempt to hold DeRay McKesson -- much less a social movement and a Twitter hashtag -- personally responsible for injuries sustained when a protester (not DeRay McKesson) tossed a chunk of concrete at him.

This judge was similarly unimpressed when another anonymous cop attempted to do the same thing two weeks later. In both cases, the court pointed out the lawsuits targeted protected speech and relied on conclusory statements linking McKesson and the social movement to actions taken by individuals participating in the protest. Both lawsuits were dismissed with prejudice, which prevents the cops from trying to pull the same litigious tricks again.

Unfortunately for DeRay McKesson and anyone else who might attempt to lead a protest against anything, the Fifth Circuit Court of Appeals has revived the first of these dismissed lawsuits. The court isn't permissive enough to let Officer "John Doe" sue a Twitter hashtag and a social movement. But it does say the lower court needs to examine the case again because the cop plausibly alleged DeRay McKesson could be indirectly responsible for another protester tossing projectiles at cops responding to the demonstration.

Seizing on the theory of negligence, the three-judge panel decides [PDF] McKesson's participation in a protest that illegally blocked a road set the stage for a confrontation between police and protesters. This supposedly means McKesson could be held personally responsible for the attack on Officer Doe because… he didn't ensure the protest remained completely legal the entire time???

We first note that this case comes before us from a dismissal on the pleadings alone. In this context, we find that Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration. The complaint specifically alleges that it was Mckesson himself who intentionally led the demonstrators to block the highway. Blocking a public highway is a criminal act under Louisiana law. See La. Rev. Stat. Ann. § 14:97. As such, it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

There's so many things wrong with the application of the negligence theory to this set of facts. First off, protests almost always "provoke a confrontation" between protesters and law enforcement -- even those that are completely legal in all other respects. Second, the illegal actions of individual members of a protest are their own. They should not be the legal responsibility of other participants in the protests.

But that's how the court sees it. DeRay McKesson will have to defend himself against a ridiculous lawsuit because he supposedly "provoked a violent confrontation" with police officers by… blocking a road. The Appeals Court says this doesn't necessarily mean the lower court will find McKesson is responsible after further fact finding, but it does mean someone participating in protected speech will have to foot the bill for absolving himself of actions taken by other protest participants.

As for the First Amendment, the court asks it to take a seat on the bench until Officer Doe's done exploring his novel legal theory.

Our discussion above makes clear that Officer Doe’s complaint does allege that Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway, which quite consequentially provoked a confrontation between the Baton Rouge police and the protesters, and that Officer Doe’s injuries were the foreseeable result of the tortious and illegal conduct of blocking a busy highway. Thus, on the pleadings, which must be read in a light most favorable to Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence theory. The district court erred by dismissing Officer Doe’s complaint—at the pleading stage—as barred by the First Amendment.

The district court may not find in favor of Officer Doe, but the Fifth Circuit Court of Appeals has made it clear people leading protests can be held responsible for the actions of individual protesters, if any action they take makes it more likely police are going to interact with demonstrators. This allows police officers to view protesters not only as criminals in need of rounding up, but lawsuit targets if any single protester injures them. First Amendment protections don't cover hurling projectiles at police, but the responsibility should be borne solely by those throwing objects at officers, not other participants.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, louisiana, police, protestors, protests, violence