Non-Profit Hilariously Claims It Can Sue Change.org For 'Flagging' Its Petition

from the not-how-it-works dept

So this post is going to touch on some issues that people get very emotional about, and I'm going to ask (probably pointlessly) that folks not focus on those issues, but on the issue that this post is actually trying to address: which is the ridiculous claim that Change.org can be sued for notifying users that statements in a petition "may be contested." A group called "Stop Antisemitism" put a petition on Change.org making a bunch of claims about CAIR, the Council on American-Islamic Relations. Many of those claims are ones that I would personally label as "highly questionable," or in some cases "downright misleading," and which some might say are simply "pure bullshit." The actual petition is supposedly a call to have Attorney General William Barr investigate CAIR. Not surprisingly, a bunch of people have complained to Change.org about this particular petition.

Change.org decided to leave the petition up, but to append a "flag" at the top with the following text (in fairly small print):

Change.org has received flags from our users that the statements in this petition may be contested. You should consider researching this issue before signing or sharing.

All in all, this is relatively mild. Since this petition was apparently generating a lot of controversy, and controversy leads to flame wars, Change.org also made the perfectly reasonable decision to disable comments on the petition, as well as removed it directly from Change.org's search. Finally, it removed a feature that lets users contribute to the organizations behind the petition after they sign it. Again, these are perfectly reasonable steps to take on a controversial petition.

Except that apparently "Stop Antisemitism" seems to think this is against the law. A group called the Zachor Legal Institute, which never explains what its exact relationship is with "Stop Antisemitism," sent a laughably silly legal threat to Change.org, arguing that the actions described above -- all of which are easily protected by Section 230 of the Communications Decency Act (not to mention the 1st Amendment) are somehow a violation of Stop Antisemitism's 1st Amendment rights. This is... silly. After going on about some nonsense about Change.org's terms of service, the threat letter makes the following claim, which is simply unsupported by the law anywhere:

While the Constitution's First Amendment does not generally apply to private parties acting as such, when such a party operates and controls public platforms used by the public for public benefit, that party becomes a quasi-state actor and can be held liable for First Amendment violations. The fact that Change.org is also a Public Benefit Corporation bolsters the need for Change.org to be free from discrimination and allow all viewpoints to be expressed without censure or other infringement.

That's not what the law says. It's not what any court says. It's rather telling, actually, that the letter cites literally nothing in support of these claims, because it has nothing it can cite.

We believe that the evidence set forth above demonstrates that Change.org has subjected the Subject Petition to a discriminatory campaign of demonetization, shadowbanning and censorship, in violation of Change.org's own policies, governance standards for Public Benefit Corporations and applicable state and federal laws, including anti-discrimination principles of California and Delaware law, federal prohibitions on ware fraud and the First Amendment.

Say what now? This is the same basic garbage legal argument that has been used by neo-Nazis and other racists suing over being kicked off of Twitter -- and so far its failed miserably, and this case here is even more ridiculous. As for the "wire fraud" claims... uh, what? There is nothing even remotely close to wire fraud in Change.org doing a bit of content moderation on its platform.

In the Jerusalem Post story linked above that first alerted us to this nonsense, Change.org notes that it disabled comments and other features on that particular petition because so many of the comments on that petition clearly violated the site's community guidelines, and thus it felt it best to just turn them off entirely -- which, again, is both an entirely reasonable decision and one that is clearly allowed under the law.

As far as I can tell, no actual lawsuit has been filed yet, but if one was, it would almost certainly be laughed out of court. I guess it's no surprise that the organization sending the letter, the Zachor Legal Institute (which, again, never actually explains its relationship to "Stop Antisemitism"), talks about how it's an advocacy organization focused on "the legal battle against 'Boycott, Divestment and Sanctions' (BDS)." As we've discussed a few times, there's been a clearly unconstitutional attack on BDS efforts lately. So I guess it figures if it's going to go all unconstitutional on BDS, why not do the same on content moderation online as well?

No matter how you feel about CAIR, BDS or all of the related issues around them, the idea that Change.org can't put a flag or otherwise moderate content on its platform is laughable. The idea that it violates the First Amendment by magically being some quasi-state actor is even more laughable. Change.org, like all internet platforms, is protected by both CDA 230 and the First Amendment, making it free to choose how it runs its site, including how it moderates content on that site. Even leaving aside that Change.org's decisions in response to an inflammatory and misleading petition were much more subdued than this petition may have deserved, if it had chosen to delete the petition entirely, that too would have been protected.

Filed Under: 1st amendment, anti-semitism, bds, cda 230, content moderation, flagging, petitions, section 230, wire fraud
Companies: cair, change.org, stop antisemitism, zachor legal institute

Judge Tells Research Center To Give Back Facial Recognition Documents The NYPD Forgot To Redact

from the was-'lol-gfy'-not-an-option? dept

The NYPD, that paragon of opacity, screwed up. And now it wants its stuff back.

The Georgetown Center on Privacy & Technology has been engaged in a public records lawsuit against the NYPD since 2017. It's seeking records on the department's use of facial recognition technology. The NYPD has fought hard, but has been forced to hand over almost 3,700 pages of relevant info to date. This after initially telling the Center it had "no responsive documents."

Contained in the steady drip of documents handed over to the Center was something the NYPD wasn't supposed to release in unredacted form. It took almost a month for the department to realize it had screwed up. Rather than let uncensored bygones be bygones, the NYPD took it up with the judge presiding over the case. The NYPD's legal rep wasn't too thrilled with the department's inadvertent transparency.

City attorney Jeffrey Dantowitz conceded that the disclosure was a fiasco.

“That a few documents were inadvertently produced without the intended redactions, while careless, was neither an intelligent nor voluntary disclosure," he wrote in court papers.

So what? Why should this be the Center's problem? Especially when the NYPD didn't realize what it had done for more than 20 days, which allowed the security researchers to peruse the unredacted documents. You can't claw back what's contained in people's minds. In this era of digital duplication, you can't really claw back documents at all.

Nevertheless, a Manhattan judge has agreed to let the NYPD engage in this exercise in futility.

A Manhattan judge has ordered academics researching the NYPD’s facial recognition technology to return documents the police cops accidentally turned over.

Justice Shlomo Hagler said the NYPD “should be more diligent” but that it was clear the 20 pages of confidential information were shared with the Georgetown Center on Privacy and Technology due to an “inadvertent error.”

The judge says Clare Garvie, the Center's attorney, can speak about the documents publicly, but cannot specifically reference which documents she's talking about. As Garvie points out, this effectively neuters this knowledge. Garvie can make assertions based on the documents she's seen, but she can't back those assertions up by referencing the documents.

Even more ridiculously, the NYPD has publicly discussed the information it now claims is too sensitive to remain in Center's hands. A presentation on the NYPD's facial recognition systems was given to conference attendees in 2018 -- a conference anyone with $1,700 on hand could attend, including non-law enforcement members of the public.

And yet the order stands resolute, ignoring logic, common sense, and the NYPD's willingness to share this same "sensitive" info with deep-pocketed randos. This reeks of vindictiveness, rather than actual concern about leaking law enforcement tools of the trade. The Center has already forced 3,700 pages out of the hands of an agency that claimed it had zero pages to turn over prior to being sued. It seems like the NYPD just wants to make the Center pay -- in one form or another -- for anything else it can no longer pretend it doesn't have.

Filed Under: clare garvie, leaks, new york, nypd, public records, releases, shlomo hagler
Companies: georgetown center on privacy and technology

Peachtree Officials Come To Their Senses, Vote Down Plan To Finance Lawsuits Against Critics Following Widespread Criticism

from the nice-move-geniuses dept

A quick followup to yesterday's post about officials in Peachtree, Georgia looking to pass a resolution that would allow city officials to spend taxpayer money to sue their own critics for defamation. There were all sorts of problems with this... and it appears the taxpayers weren't happy. At the city council meeting last night, lots of those taxpayers made it clear this was a bad idea:

People lined up to push back against the resolution....

“You get to decide whether you’ve been defamed or not and you want to use our money taxpayer money to sue us, we might impoverish us,” said another Peachtree City resident.

It sounds like nearly everyone who spoke out was against the proposal, leading it to be voted down unanimously, though the mayor, Vanessa Fleisch, had an odd bit of commentary on the whole thing:

“I think it’s the right outcome I work for the citizens, the intent was very pure but it wasn’t written correctly I’ve been told and so the citizens have spoken and we move on,” said Mayor Fleisch.

The intent is never pure when the goal is for public officials to sue critics. And, the problem was not that it wasn't written correctly. The problem was with the whole idea. Hopefully, this doesn't mean there's a plan to "rewrite" this proposal. Just leave it be and maybe get a somewhat thicker skin if you're going to work for the government.

Filed Under: 1st amendment, defamation, free speech, georgia, jon rorie, lawsuits, peachtree city, taxpayer funds, vanessa fleisch

Supreme Court Again Ducks A Chance To Clarify First Amendment Protections

from the rap-on-brother-rap-on dept

The First Amendment is getting no help from the nation's highest court. Yet again, the Supreme Court is declining an opportunity to answer a very important question about free speech: where is the dividing line between threats and violent -- but protected -- speech?

The Supreme Court already punted on this issue in 2015 with the Elonis v. United States case. In that case, Anthony Elonis posted a bunch of nasty stuff online about his ex-wife. He ended up being jailed for these, with the court finding his posts -- which he claimed were merely him venting in the form of ultraviolent rap lyrics -- constituted threats.

His appeal went all the way to the top but the Supreme Court had nothing for him. It did overturn his conviction, but it left the First Amendment question unanswered. The Supreme Court said the trial court adhered to the wrong negligence standard -- one that said Elonis should have known his posts were threatening if any "reasonable person" would find them threatening. The correct standard to use was mens rea, meaning the government needed to prove Elonis knew his posts were illegal (i.e., that they were "genuine threats") when he posted them.

As for the First Amendment, the Supreme Court seemed happy to avoid this issue completely. Having decided the wrong standard was used by the trial court, the Supreme Court declared it did not need to hand down an opinion on the First Amendment implications, leading to the mess we're in now, with lower courts drawing disparate conclusions about the line between threats and protected speech.

The mess will continue. Pittsburgh rap artist Jamal Knox was jailed for the lyrics of his song "Fuck the Police." An obvious tribute to the 1988 N.W.A. track, Knox's song included the names of two officers that had previously arrested him and some very descriptive violent acts involving them.

Knox and Beasley's song, posted on Facebook and YouTube, included the names of the two Pittsburgh officers who arrested them with lyrics like, "I'ma jam this rusty knife all in his guts and chop his feet" and "Well your shift over at three and I'm gonna f*** up where you sleep."

The song ended, "Let's kill these cops cuz they don't do us no good."

The officers testified that the lyrics made them "nervous" and concerned for their safety, with one saying it led him to leave the police force.

On the basis of the cops' subjective response to the song's lyrics, Knox was sent to prison for two years. (His sentence also included drug and gun charges.) Knox argued his lyrics were part of his rap persona and that he was not trying to threaten the officers, much less try to bring his violent lyrics to life. The state supreme court upheld the conviction, apparently because the justices had never heard a rap song in their lives.

"...The rap song here is of a different nature and quality," the court's chief justice wrote in the majority opinion.

"They do not include political, social, or academic commentary, nor are they facially satirical or ironic. Rather, they primarily portray violence toward the police," the opinion read.

This rationale was rebutted in a masterful understatement in the rapper's brief to the Supreme Court:

The rappers, in their brief filed Wednesday, said that the opinion "reveals a court deeply unaware of popular music generally and rap music specifically."

We'll never find out whether the SCOTUS justices are a bit more up on today's urban music, unfortunately.

The Supreme Court declined Monday to take up the case of rapper Jamal Knox, who argued he was sent to prison for a song that was protected by the First Amendment.

By avoiding the issue for now, the justices left for another day a look at the contours of so called "true threats" -- speech that falls outside the protections of the First Amendment.

That's a shame. Thanks to its disinterest, we're just going to have to throw the greatest rap collaboration track ever released in the trash. The amicus brief sent to the unreceptive court was penned by some lawyers and legal scholars. Oh, and these guys:

Additional amici include musical artists Chancelor Bennett (“Chance the Rapper”), Robert Rihmeek Williams (“Meek Mill”), Mario Mims (“Yo Gotti”), Joseph Antonio Cartagena (“Fat Joe”), Donnie Lewis (“Mad Skillz”), Shéyaa Bin AbrahamJoseph (“21 Savage”), Jasiri Oronde Smith (“Jasiri X”), David Styles (“Styles P”), Simon Tam (member of The Slants and petitioner in Matal v. Tam, 137 S. Ct. 1744 (2017)), and Luther R. Campbell (member of 2 Live Crew and petitioner in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)), as well as music industry representatives Alan Light (former Editorin-Chief, Vibe and Spin magazines), Dina LaPolt, Patrick Corcoran, Peter Lewit, and the entertainment company Roc Nation, LLC.

I guess the First Amendment will have to wait for another test case the Supreme Court can't wait to bypass. We need to have this question answered. Rap music -- and those inspired by it -- is something that just isn't going to go away.. Until SCOTUS finally decides it's going to answer some difficult questions, all we really have left is this GIF:

Filed Under: 1st amendment, free speech, jamal knox, lyrics, music, rap, supreme court

The UK's Dubious Plan For Age-Based Porn Filters Begins On July 15

from the hurry-and-hide-the-naughty-bits dept

Undaunted by the fact that internet filters never actually seem to work, the UK continues its quest to censor the internet of all of its naughty bits.

The UK has long implemented porn filters in a bid to restrict anybody under the age of 18 from accessing such content. New age verification controls were also mandated as part of the Digital Economy Act of 2017. But as we've previously noted, the UK government has seen several fits and starts with its proposal as it desperately tries to convince the public and business sectors that the ham-fisted effort is going to actually work. This week the country formally announced that its filter proposal officially now has a start date: July 15.

According to the UK government, websites that fail to comply with the country's age verification program face fines up to £250,000, risk being taken offline, or may lose access to payment services:

"...commercial providers of online pornography will be required by law to carry out robust age-verification checks on users, to ensure that they are 18 or over. The move is backed by 88% of UK parents with children aged 7-17, who agree there should be robust age-verification controls in place to stop children seeing pornography online.

Websites that fail to implement age-verification technology face having payment services withdrawn or being blocked for UK users."

In short, starting in July, should you want to view some porn, you'll be redirected to a special subsite where you'll be prompted for an email address and a password, before verifying your age using a driving license or a passport. There's a few exceptions, including websites that aren't selling access to porn and those that are simply engaging in "artistic" pursuits. Expecting the UK government to figure all of this out on the run should, at the very least, provide some entertainment value.

While this might make some people feel good, there's still little hard data to suggest any of this is going to work, and more than a few hints it's actually going to cause problems. The obvious risk of this data leaking out and being used nefariously is one concern. The other major problem is there are simply too many porn websites to effectively police, and the belief the UK government can police them all is arguably laughable. Meanwhile all it takes to avoid the restrictions is the use of a VPN or proxy to trick the website in question to think that you're coming from another country.

Others note that the ban is likely to just drive many users looking for porn toward notably more seedy venues and workarounds:

"When you hire a bouncer to crack down on kids drinking in the local pub, you don’t get a sudden rise in homework. You get a surge in fake IDs and drinking in the park.

The porn block will do the same thing online, pushing kids towards streaming sites stuffed with malware, creepy subreddits, and places on the dark web that sell credit cards details – because it seems as if this age verification system is going to use credit cards as its basis. It’s a classic case of driving legal behaviour underground, making it a whole lot dodgier than it was in the first place."

Meanwhile there's little data supporting the idea that porn filters in general even work, and plenty of data suggesting such filters routinely cause collateral damage. A joint-report published this week by digital rights advocates Open Rights Group (ORG) and Top10VPN VPN review portal noted the UK government already filters 760,000 websites with notable inaccuracy, leading to the routine inadvertent censorship of legitimate websites.

All in all the UK's war on porn is a puritanical feel good measure that's going to cause far more problems than it actually fixes. And in a few years it's likely the UK will either retreat from the measure after it gets tired of playing a futile game of naughty-bit Whac-a-Mole, or will double down on the efforts while pretending the entire affair actually worked.

Filed Under: censorship, porn, porn filters, uk

Peachtree City Wants To Use Taxpayer Money To Sue Critics Of City Government

from the can-someone-buy-them-a-Bill-of-Rights? dept

What is it with the state of Georgia and its attempts to stifle free speech and a free press? It's the state that argues its official copy of the law is covered by copyright and cannot be posted online. The same state that is currently trying to regulate journalism by creating "ethical standards" they have to follow. The same state that is so bad in responding to public records law that an official was actually criminally charged for it?

The latest, as sent in by a few people, is that tonight, Peachtree City, a suburb of Atlanta, is voting on a laughably obviously unconstitutional provision that would allow city officials to file bogus SLAPP suits, using taxpayer funds, against critics. Really. Specifically, the proposal says that the city will provide "coverage for legal expenses when a City official has been defamed in a public media outlet or otherwise slandered or libeled to the public..." It does note that the defamation must be a "valid claim for defamation... under Georgia law." So, one might argue that filing a bogus SLAPP suit wouldn't be covered by this policy -- but it's unclear how that will work.

We see bogus defamation lawsuits filed all the time to censor critics, and as a public official, the bar to a successful defamation lawsuit is (for very good reasons) quite high. So, under this proposal, will the city officials have to pay back the city treasury if such a case is tossed out? One would hope that's the case, but the text of the proposal has no language to that effect. The only language is has regarding reimbursement is that if the lawsuit is "settled in the City's favor, the City shall seek reimbursement for the actual legal costs incurred in successful pursuit of the defamation ruling by the person or persons committing the defamation."

It has no provision for what happens when it turns out there wasn't defamation and the city just wasted taxpayer funds suing critics who didn't actually defame anyone.

It is already dubious that any public official should ever be suing critics -- but to have taxpayers have to foot the bill for SLAPP suits is both deeply obnoxious and unconstitutional, that it seems perfect for Georgia.

The city manager, Jon Rorie, is quoted in a few different articles about this, basically making the same extraordinarily bad point

“I don’t think that someone should have the ability to come in and just said something, that I committed a crime, I don’t think it’s fair,” said Jon Rorie, the city manager of Peachtree City.

Right. And if it's actually defamatory, then you can sue yourself. You don't need taxpayer funds to go after someone.

In the other link (up above, towards the beginning of the article) Rorie gets even more ridiculous:

“It’s a brave, new world. It’s not about people criticizing. It’s about being defamed,” Rorie said, noting that such defamation could come from a newspaper or any media, including social media. “People think they have the luxury of saying false things about people. No one has the right to say I (or anyone working or volunteering for the city) am corrupt and attack me publicly.”

Actually, Jon, you're wrong. People absolutely do have the right to attack you (verbally) in public. And they can certainly make opinion-based statements, including arguing that actions are corrupt. To actually be defamation, they would need to be making false statements of fact, where they knew the statement was false (or recklessly disregarded the truth) and those statements had to actually harm your reputation. That doesn't seem to be the standard Rorie is laying out here.

The journalist for the Citizen properly pointed out to Rorie that, even if this is all true, the bigger question is why should taxpayer funds go towards such lawsuits, and Rorie's answer is telling:

Rorie was asked why use taxpayers dollars to sue an individual. Rorie responded, saying he did not know the answer to that question, adding that the topic is worth discussing in a public meeting and, hence, was put on the agenda.

Seems like the kind of thing you should think about before pushing such a resolution, no?

Filed Under: anti-slapp, defamation, georgia, jon rorie, peachtree city, public officials, slapp, taxpayer funds

Don't Force Web Platforms To Silence Innocent People

from the censorship-is-a-powerful-tool dept

The U.S. House Judiciary Committee held a hearing last week to discuss the spread of white nationalism, online and offline. The hearing tackled hard questions about how online platforms respond to extremism online and what role, if any, lawmakers should play. The desire for more aggressive moderation policies in the face of horrifying crimes is understandable, particularly in the wake of the recent massacre in New Zealand. But unfortunately, looking to Silicon Valley to be the speech police may do more harm than good.

When considering measures to discourage or filter out unwanted activity, platforms must consider how those mechanisms might be abused by bad actors. Similarly, when Congress considers regulating speech on online platforms, it must consider both the First Amendment implications and how its regulations might unintentionally encourage platforms to silence innocent people.

Again and again, we’ve seen attempts to more aggressively stamp out hate and extremism online backfire in colossal ways. We’ve seen state actors abuse flagging systems in order to silence their political enemies. We’ve seen platforms inadvertently censor the work of journalists and activists attempting to document human rights atrocities.

But there’s a lot platforms can do right now, starting with more transparency and visibility into platforms’ moderation policies. Platforms ought to tell the public what types of unwanted content they are attempting to screen, how they do that screening, and what safeguards are in place to make sure that innocent people—especially those trying to document or respond to violence—aren’t also censored. Rep. Pramila Jayapal urged the witnesses from Google and Facebook to share not just better reports of content removals, but also internal policies and training materials for moderators.

Better transparency is not only crucial for helping to minimize the number of people silenced unintentionally; it’s also essential for those working to study and fight hate groups. As the Anti-Defamation League’s Eileen Hershenov noted:

To the tech companies, I would say that there is no definition of methodologies and measures and the impact. […] We don’t have enough information and they don’t share the data [we need] to go against this radicalization and to counter it.

Along with the American Civil Liberties Union, the Center for Democracy and Technology, and several other organizations and experts, EFF endorses the Santa Clara Principles, a simple set of guidelines to help align platform moderation practices to human rights and civil liberties principles. The Principles ask platforms

• to be honest with the public about how many posts and accounts they remove,
• to give notice to users who’ve had something removed about what was removed, and under what rule, and
• to give those users a meaningful opportunity to appeal the decision.

Hershenov also cautioned lawmakers about the dangers of heavy-handed platform moderation, pointing out that social media offers a useful view for civil society and the public into how and where hate groups organize: “We do have to be careful about whether in taking stuff off of the web where we can find it, we push things underground where neither law enforcement nor civil society can prevent and deradicalize.”

Before they try to pass laws to remove hate speech from the Internet, members of Congress should tread carefully. Such laws risk pushing platforms toward a more highly filtered Internet, silencing far more people than was intended. As Supreme Court Justice Anthony Kennedy wrote in Matel v. Tam (PDF) in 2017, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”

Republished from the EFF's Deeplinks blog.

Filed Under: bias, cda 230, censorship, content moderation, free speech, house judiciary committee, section 230, social media

New Paper: Why Section 230 Is Better Than The First Amendment

from the they're-related dept

We've talked a lot over the years about the importance of Section 230 of the Communications Decency Act (CDA) in helping to create and enable the internet and all of the free speech on the internet. Expect us to continue to talk about it as it is increasingly under attack. Professor Eric Goldman has now released a short, and very worth reading, paper about Section 230, with the provocative title: Why Section 230 Is Better Than the First Amendment. The importance here is that many have argued that CDA 230 and the 1st Amendment go hand in hand. At times, in the past, I've argued that in a reasonable world we shouldn't even need a CDA 230, because the proper application of liability should obviously be with the person posting the law-breaking content, rather than the platform hosting it. But, that was clearly talking about in an idealistic world that does not exist. Given the frequency of lots of people -- plaintiffs, journalists, politicians, and more -- going after platforms for actions of their users, CDA 230's broad immunity is absolutely necessary if we're to have free speech online. Goldman's paper makes this clear:

If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that’s not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.

Goldman's paper lays out the argument very clearly (it's very readable for an academic paper). He notes that Congress has passed many laws that are "speech enhancing" beyond the 1st Amendment, which are often designed to make sure that the 1st Amendment is actually useful, rather than illusory. For example, he discusses things like shield laws for journalists, anti-SLAPP laws, and the recent Consumer Review Fairness Act, that bars companies from banning consumer reviews. As Goldman notes, there are reasons to go beyond the 1st Amendment to better protect speech:

The justification for speech-enhancing statutes is clear when the laws extend the First Amendment. For example, anti-SLAPP laws and defamation retraction-demand statutes create procedural hurdles to speech-related lawsuits that the First Amendment does not require. The CRFA governs private vendor-customer contracts, which typically do not receive First Amendment scrutiny at all.

The key point that Goldman makes is that most of these laws provide procedural benefits. That is, what good are your free speech rights, if someone can abuse legal processes to silence you. The important elements of things like anti-SLAPP laws and CDA 230 are in how they stop bogus lawsuits early and at a lower cost point than the 1st Amendment alone.

Section 230(c)(1)’s early dismissals are valuable to defendants. They reduce the defendant’s out-of-pocket costs to defeat an unmeritorious claim. For smaller Internet services, defending a single protracted lawsuit may be financially ruinous. Also, complex litigation can divert substantial managerial and organizational attention and mindshare from maintaining or enhancing the service. Thus, the ability of a defendant to resolve a case on a motion to dismiss (and avoiding expensive discovery) protects small and low-revenue Internet services; which in turn enhances the richness and diversity of the Internet ecosystem.

But, of course, it's not just about defeating bogus lawsuits. There are wider benefits to this procedural expeditiousness, including much better protection of free speech online than would happen otherwise:

Section 230(c)(1)’s early dismissals also benefit society in several ways. First, from a judicial economy standpoint, they save both parties from wasting valuable resources on doomed litigation. They also take meritless litigation off court dockets, freeing up the courts to handle other cases more carefully or quickly.

Second, Internet services rarely make a lot of money from any single item of third-party content, so they lack financial incentives to stand behind individual items. Also, the services often lack the facts sufficient to properly defend third-party content in court.

Accordingly, the most economically rational decision for most Internet services is to capitulate to any lawsuit over UGC—or avoid the lawsuit altogether by quickly removing third-party content in response to pre-litigation demands, without any investigation or pushback. This causes “collateral censorship,” i.e., the proactive removal of legitimate content as a prophylactic way of reducing potential legal risk and the associated potential defense costs.

Unmeritorious quick removals are common in online copyright law,57 because the UGC copyright safe harbor58 is less defendant-favorable than Section 230.59 In contrast, Internet services routinely stand up to non-copyright legal threats, legal demands, and cease-and-desist letters targeting UGC—because Section 230 provides them legal certainty at a relatively low cost.

And, of course, if everyone had to rely on using the First Amendment to defend such lawsuits, it would be a lot more time consuming and a lot more expensive:

Unlike Section 230, Constitutional litigation is rarely quick or cheap. In particular, courts are reluctant to resolve Constitutional arguments on motions to dismiss. Further, Constitutional doctrines often raise sufficient factual questions that courts wait until summary judgment (or later) before disposing of an unmeritorious case. Thus, Internet services will expect it to cost less to defend UGC via Section 230 than the First Amendment, which makes the services more willing to stand up for their users. And if Section 230 and the First Amendment both equally dictate defense wins, society as a whole benefits from reaching that result as quickly and cheaply as possible.

Importantly, Goldman points out that this kind of protection probably helps marginalized communities protect their speech the most. This is partly why it's so annoying that so many people seeking to attack CDA 230 lately have been claiming to do so on behalf of marginalized communities.

The services’ Section 230-aided commitment to their UGC especially benefits content from marginalized communities. Not only are marginalized voices more likely to be targeted by people in positions of power, but Internet services are less likely to worry about the consequences of removing content from marginalized communities. Compared to the First Amendment, Section 230 helps keep online the most “at risk” legitimate content.

I've seen some critics of CDA 230 already criticizing Goldman's paper, not on substance (because, how could they), but by misrepresenting it as suggesting that CDA 230 somehow supersedes the 1st Amendment. That's not what he's saying at all. What he argues -- clearly, carefully, and with great detail -- is that the procedural benefits of CDA 230 are vast and immense and are not simply replicated by the 1st Amendment should Congress continue to chip away at CDA 230.

Filed Under: 1st amendment, cda 230, civil procedure, eric goldman, free speech, procedures, section 230, speech enhancing

John Oliver Has Famous Actors Act Out The Deposition Richard Sackler Is Trying To Hide

from the public-records dept

One of the issues that we've discussed quite a bit on Techdirt over the years is the lengths that some people want to go to to hide court records and important public documents. The main story on this past weekend's Last Week Tonight with John Oliver tackled this issue in relation to Richard Sackler, the former chairman and president of Purdue Pharma, the company that developed and promoted Oxycontin. Much of the episode focused on questionable things said or done by Sackler, but towards the end, Oliver notes that Sackler has done an amazing job hiding from public scrutiny. There are very few pictures of him even online and no real videos they could find.

Most of the Sackler family has done its very best to avoid publicly talking about the marketing of Oxycontin, or the astounding mess it has created for the world (though, some members of the family have recently been complaining about guilt by association). However, a few years ago, in a lawsuit over the marketing of Oxycontin, Richard Sackler was forced to give a deposition in the case, which has been held under seal.

Somehow, ProPublica was able to get its hands on the transcript of the deposition and published it back in February. Since then the family has been fighting against the release of the actual video recording of Sackler's deposition. There is tremendous public interest in this as Oliver explains in the video above, and ProPublica wrote about upon the release of the document:

As part of the settlement, the Kentucky attorney general agreed to destroy its copies of 17 million pages of documents produced during the eight-year legal battle with Purdue. But some of the same documents remained in a sealed file in a rural eastern Kentucky courthouse. STAT filed a motion in 2016 asking the judge in that case to make the documents public, and he ordered the unsealing of those documents, including the Sackler deposition.

“The court sees no higher value than the public (via the media) having access to these discovery materials so that the public can see the facts for themselves,” Pike Circuit Court Judge Steven Combs ruled in May 2016.

Purdue appealed the ruling to the Kentucky Court of Appeals, which upheld it in December 2018. The company then asked the state Supreme Court to review that decision.

ProPublica also notes that this "is believed to be the only time a member of the Sackler family has been questioned under oath about the illegal marketing of OxyContin and what family members knew about it." That's why the transcript is so important.

However, as Oliver notes, the Sacklers have continued to fight the release of the video and various other documents related to the case -- so to "help out," he brought together a group of talented actors to act out parts of the deposition and put them up on the website SacklerGallery.com -- a nod to the fact that the Sacklers have been getting lots of museums to name galleries and wings and other things after them. The actors include Bryan Cranston, Michael Keaton, Richard Kind, and Michael K. Williams. I'll leave it to John Oliver in the video above to explain why each of them are used, because it's truly wonderful.

Filed Under: bryan cranston, court documents, deposition, john oliver, michael keaton, michael williams, richard kind, richard sackler
Companies: purdue pharma

Devin Nunes Admits That His Bogus Defamation Lawsuits Are Really About Phishing For Journalists' Sources

from the slapp-suits dept

We have already talked about how the two separate defamation lawsuits Devin Nunes has filed against critics and journalists are bullshit SLAPP suits designed to intimidate and attack protected speech. But now Nunes himself has gone even further, admitting out loud that his intent with at least the second lawsuit, against the Fresno Bee, is to force the newspaper to give up its sources:

“I am absolutely sure that they do not want this to get to discovery so that we find out who their sources are,” Nunes told Fox & Friends. “Somebody gave them the phony information that the National Rifle Association was involved with Russian collusion. Somebody gave them the phony information that Cohen was in Prague when he wasn’t.”

Here's the video of him saying that:

So, first of all, the issue with the NRA and Michael Cohen aren't even the subject of the lawsuit he's filed, so that's a bizarre thing to raise unless the intent of the lawsuit is purely performative for an idiotic base who wants to build up some big conspiracy. Second, he's flat out admitting that the intent of his lawsuit is an attack on basic press freedoms like source protection. Remember, this is a Congressman who has sworn to uphold the Constitution, and that includes the 1st Amendment he is attacking with these lawsuits.

Furthermore, in the video Nunes suggests he's not done yet, saying "we're actually going to go after several media outlets." Apparently, he's decided going to war with the First Amendment is a good idea. Also in the video, Nunes claims that he sued Twitter for shadow-banning him, which (1) it did not do, and (2) it legally could if it wanted to, and (3) the shadow-banning, while talked about in the lawsuit, is not actually part of any of the actual claims in the lawsuit.

More and more this appears to be lawsuit-as-performance, allowing Nunes to rile up a base by pretending to take on critics and the media. And that's exactly what the 1st Amendment does not allow -- especially from a public, elected official. The fact that Nunes chose to file these cases in Virginia state court, with its much weaker anti-SLAPP laws, rather than in California's courts (where he, the Fresno Bee, and Twitter, all are) suggests that even he knows these cases wouldn't survive a true anti-SLAPP test. But now that he's out and out admitting that the point of the lawsuits is to go on a journalistic source fishing expedition (even over stories totally unrelated to the one about him) certainly seems to confirm how much Nunes is focused on spitting on the First Amendment that he's sworn to protect.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, fishing expedition, free speech, journalism, slapp, source protection, sources