Rep. Devin Nunes Sues Internet Cow For Saying Mean Things About Him Online

from the the-nunes-effect dept

Last year, Devin Nunes co-sponsored the Discouraging Frivolous Lawsuits Act. Twelve days ago, he voted for a House Amendment "to express a sense of Congress that free speech should be protected."

And yesterday, he sued an internet cow for making fun of him.

By now you may have heard, as first reported by Fox News, that Rep. Devin Nunes -- who spent two years making a total mockery of the House Intelligence Committee -- has decided to sue Twitter and some satire accounts, and a real political commentator for a variety of "offenses" from defamation to shadow banning. The complaint, filed in a local court in Virginia, is not yet available anywhere but Fox News' posting of it (so you can click the link above, but we can't embed it yet).

Let's just get the first part out of the way: the complaint is utter nonsense. It is a complete joke. It makes a total mockery of the judicial system and its an embarrassment that Nunes thought this was a good idea. We'll get into the details in a moment, but rest assured, we see a lot of really dumb lawsuits, and this one is up there on the list of truly special ones.

At the very least, it highlights exactly what kind of content gets under his skin. It's mostly a bunch of dumb tweets mocking Nunes that not that many people saw... and now absolutely everyone will see. Apparently, Rep. Nunes has never heard of the Streisand Effect, but he's learning quite a bit about it now.

Let's dig in. The caption for the lawsuit is... truly special:

If you can't see that, it lists Nunes as the plaintiff followed by four defendants: Twitter, Liz Mair, and then two obviously satirical Twitter accounts: @DevinNunesMom and @DevinCow. Yeah.

The lawsuit does not get any better from there. He's seeking $250 million and almost every argument in the lawsuit is beyond laughable. The very first footnote, on the first page, completely misrepresents Section 230 of the CDA to a laughable degree:

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. See Title 47 U.S.C. § 230(f)(3). The word responsible ordinarily has a normative connotation. See The Oxford English Dictionary 742 (2nd ed. 1998) (stating one definition of responsible as “Morally accountable for one’s actions.”). As one authority puts it: “[W]hen we say, ‘Every man is responsible for his own actions,’ we do not think definitely of any authority, law, or tribunal before which he must answer, but rather of the general law of right, the moral constitution of the universe....” James C. Fernald, Funk & Wagnalls Standard Handbook of Synonyms, Antonyms, and Prepositions 366 (1947). Synonyms for responsibility in this context are blame, fault, guilt, and culpability. See Oxford American Writer’s Thesaurus 747 (2nd ed. 2008). Accordingly, to be “responsible” for the development of offensive content, such as defamation, one must be more than a neutral conduit for that content. One is not “responsible” for the development of offensive content if one’s conduct was neutral with respect to the offensiveness of the content (as would be the case with the typical Internet bulletin board). We would not ordinarily say that one who builds a highway is “responsible” for the use of that highway by a fleeing bank robber, even though the culprit’s escape was facilitated by the availability of the highway. Twitter is “responsible” for the development of offensive content on its platform because it in some way specifically encourages development of what is offensive about the content. FTC v. Accusearch, Inc. , 570 F.3d 1187, 1198-1199 (10th Cir. 2009) (citing Fair Housing of Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d 1157, 1168 (9th Cir. 2008) (“a website helps to develop unlawful content …if it contributes materially to the alleged illegality of the conduct.”)

This is totally misrepresenting Section 230 and a variety of lawsuits around it. It focuses in, bizarrely, on the definition section 230(f)(3) ignoring what the law actually says in 230(c)(1) and (2) about the lack of liability for the platforms. Instead, it focuses narrowly on "responsible" as if that's all the law says. It's wrong and no court agrees with this analysis. Indeed, it misrepresents two key CDA 230 cases to try to make this point. The Accusearch case involved a databroker that sold user data, and tried to claim Section 230 immunity after the FTC sued. But as the court found, since Accusearch itself was selling the data, and that was the action the FTC went after the company for, it was liable for those actions, not the user-generated content. And, in the Roommates case, the 9th Circuit was pretty clear that while Roommates could be found liable for violating the Fair Housing Act, it would only be on the specific content that Roommates.com itself created (namely, a pulldown menu for users to disclose their sex, family status and sexual orientation -- which the court ruled could lead to discrimination). Again, in both cases, the law is specifically applied not to any of the content by users, but specifically to direct content or actions done by the platforms themselves.

Nunes is trying to use those cases to argue that Twitter loses its CDA 230 immunity because it's moderating content, because those moderation choices are actions, a la what happened in Accusearch and Roommates:

Twitter is an information content provider. Twitter creates and develops content in whole or in part, through a combination of means: (a) by explicit censorship of viewpoints with which it disagrees, (b) by shadow-banning conservatives, such as Plaintiff, (c) by knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory – providing both a voice and financial incentive to the defamers – thereby facilitating defamation on its platform, (d) by completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public, and (e) by intentionally abandoning and refusing to enforce its so-called Terms of Service and Twitter Rules – essentially refusing to self-regulate – thereby selectively amplifying the message of defamers such as Mair, Devin Nunes’ Mom and Devin Nunes’ cow, and materially contributing to the libelousness of the hundreds of posts at issue in this action.

This interpretation literally ignores basically every Section 230 decision (other than the two it misreads entirely) and completely ignores the entire point of the law, which is to immunize platforms in response to their moderation choices. Remember, CDA 230 was passed in response to the ruling in Stratton Oakmont v. Prodigy that found Prodigy liable for moderation choices it had made. The entire point of the law is that making moderation choices for user content leaves you immune from liability.

Furthermore, there is no actual evidence of conservative bias on Twitter, and another lawsuit claiming the same thing got tossed out just last week. As for the claim of "shadowbanning," Nunes is again completely misrepresenting reality. Last year, we wrote about this (in the context of Devin Nunes grandstanding on this), but the claims of "shadowbanning conservatives" was based on a misleading report in Vice. There was a temporary glitch in Twitter's "autocomplete" feature, that meant that some users' names did not show up in the autocomplete pulldown, and some people noticed that some of those impacted were well known conservatives. That's it. They were not shadowbanned. It was a temporary glitch for a very tiny feature (autocomplete) that had no bearing on whether or not users could find those impacted. And it impacted over 100,000 users, not just conservatives.

The story we wrote last year mocked Nunes for insisting he was considering taking legal action over this, and we would have thought that maybe lawyers would have talked him off of this, but apparently not. In short, the entire legal basis for including Twitter in this lawsuit is nonsense.

And from there, the complaint gets even worse. Because most of the lawsuit is little snowflake Devin Nunes whining about how a couple of satirical Twitter accounts, as well as one Republican political commentator, mocked him mercilessly, and Nunes just can't take it. If you want to know how to get under Devin Nunes' insanely thin skin, he's just given the entire world a guide.

We seriously don't have enough time to go through all of the claims in the lawsuit, but suffice it to say almost all of them are (a) opinions, (b) opinions based on clearly disclosed facts, or (c) rhetorical hyperbole. And note: none of those are defamatory. Also, the complaints reveal what Nunes is most afraid of: people looking into his "family farm" that is so much a part of his origin story, as well as an investment he made in a Napa winery. While the lawsuit doesn't go after these two articles, he does seem to consider references to the following two articles magically defamatory. And therefore, you should probably join in with thousands of others people today in reading the following two articles from last year:

1. First up, an article in the Fresno Bee about Nunes investment in a Napa winery, with the following headline: "A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event." That can't look good. The details do show that it was merely a winery that Nunes had invested in, and there's no allegations that Nunes had anything to do with the yacht, cocaine or prostitutes, but Nunes has carefully tried to avoid commenting on it, leading to even more coverage. And Liz Mair keeps reminding him of all of this, leading Nunes to call the following tweet the "most egregious and defamatory" of her tweets towards Nunes:

This is not defamatory. The facts stated are not in dispute. The Fresno Bee wrote about the story. Nunes did invest in the winery. The winery was involved in a lawsuit where it was alleged that prostitution was used on a boat and it was alleged in the lawsuit that some of the prostitutes appeared to be underage.

2. Then we have this truly amazing story in Esquire by Ryan Lizza about how Devin Nunes' family sold their California farm, opened a new dairy farm in Rep. Steve King's district in Iowa, where nearly all of the farms in the area employ undocumented workers. The story is completely worth reading, and I would have never known about it, absent this lawsuit (there's a term for that...). Basically Lizza goes to Sibley, Iowa to try to track down why Nunes is so secretive about his family moving there, and discovers a friendly set of people in the town who readily admit that they think Steve King and Donald Trump's views on immigration are bad, and worry that ICE raiding the farms in the town would put all the farms out of business. But, then Lizza is basically chased out of town by Nunes family -- and, amazingly, at the same time a years-old article that Lizza had used to find out about the Nunes' farm in Iowa magically disappears from the internet.

The rest of the lawsuit, concerning the two satirical accounts @DevinNunesMom and @DevinCow are truly something to behold. This is "someone is mad online" in the form of a $250 million lawsuit. I mean, look, when your lawsuit has this paragraph, I'm afraid you've already lost:

Defendant, Devin Nunes’ Mom, is a person who, with Twitter’s consent, hijacked Nunes’ name, falsely impersonated Nunes’ mother, and created and maintained an account on Twitter (@DevinNunesMom) for the sole purpose of attacking, defaming, disparaging and demeaning Nunes. Between February 2018 and March 2019, Twitter allowed @DevinNunesMom to post hundreds of egregiously false, defamatory, insulting, abusive, hateful, scandalous and vile statements about Nunes that without question violated Twitter’s Terms of Service and Rules, including a seemingly endless series of tweets that falsely accused Nunes of obstruction of justice, perjury, misuse of classified information, and other federal crimes

This is followed by a bunch of tweets from @DevinNunesMom, almost all of which are clearly rhetorical hyperbole, accusing Nunes of not caring about his district and of engaging in obstruction of justice (a claim based on some of Nunes' activity as Chair of the House Intelligence Committee, in which he seemed much more focused on protecting the President, rather than actually doing his job). And then there's all of this, none of which is really defamatory. It's just part of being a public person (indeed, an elected official) online:

In her endless barrage of tweets, Devin Nunes’ Mom maliciously attacked every aspect of Nunes’ character, honesty, integrity, ethics and fitness to perform his duties as a United States Congressman. Devin Nunes’ Mom stated that Nunes had turned out worse than Jacob Wohl; falsely accused Nunes of being a racist, having “white supremist friends” and distributing “disturbing inflammatory racial propaganda”; falsely accused Nunes of putting up a “Fake News MAGA” sign outside a Texas Holocaust museum; falsely stated that Nunes would probably join the “Proud Boys”, “if it weren’t for that unfortunate ‘no masturbating’ rule”; disparagingly called him a “presidential fluffer and swamp rat”; falsely stated that Nunes had brought “shame” to his family; repeatedly accused Nunes of the crime of treason, compared him to Benedict Arnold, and called him a “traitor”, “treasonous shitbag”, a “treasonous Putin shill”, working for the “Kremlin”; falsely stated that Nunes was “100% bought and sold. He has no interest remaining for his constituents”; falsely accused Nunes of being part of the President’s “taint” team; falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence; falsely accused Nunes of “secretly hat[ing] the people he’s supposed to serve”; falsely accused Nunes of being a “lying piece of shit”; falsely stated that Nunes would lose custody of his children and was going to “the pen”; falsely accused Nunes of receiving pay for undermining “American Democracy”; falsely stated that Nunes was “the most despicably craven GOP public official” and that “Devin might be a unscrupulous, craven, back-stabbing, charlatan and traitor, but he’s no Ted Cruz”; falsely stated that Nunes was “voted ‘Most Likely to Commit Treason’ in high school”; falsely stated that “The people of California’s Central Valley are upright folk who work hard, look you square in the eye and give you a firm handshake. And then there is @DevinNunes”; falsely stated that Nunes is “not ALL about deceiving people. He’s also about betraying his country and colluding with Russians”; stated “I don’t know about Baby Hitler, but would sure-as-shit abort baby Devin”; falsely stated that “Alpha Omega wines taste like treason”; falsely stated that “@DevinNunes wanted me to tell everyone that he’ll be releasing a pic soon to get ahead of that AMI thing, and that it only looks that way because of all the blow”; falsely suggested that Nunes might be willing to give the President a “blowjob”; falsely stated “@Devin Nunes look @SpeakerRyan is removing @Rep_Hunter from his committee seat because he’s corrupt and incompetent. I wonder why he let you keep yours?”; falsely accused Nunes of “covering up Trump’s conspiracy against the United States”; falsely accused Nunes of lying to Congress; falsely accused Nunes of suborning “perjury”; falsely stated that “@Devin Nunes is DEFINITELY a feckless cunt”; falsely stated that “[i]f you vote for @Devin Nunes the terrorists win”; falsely stated “please don’t call @DevinNunes compromised. He’s not at all. He’s a complete and total fucking traitor”; falsely stated that Nunes was a “spy” in Congress “passing along information to the subject of a federal investigation”; falsely stated that Nunes knows “a thing or two about throwing away evidence, don’t you Scabbers”; falsely claimed that Nunes was “WANTED” and hiding and “hopes he doesn’t get indicted”; falsely claimed that Nunes would “probably see an indictment before 2020”; and even falsely stated that Nunes has “herp-face”.

Seriously, there is way too much to comment on in there, but pretty sure none of that is defamatory. It's mocking and disparaging, and lots of it contains rhetorical hyperbole, but defamatory? How do you prove whether or not someone has a "her face"? Also, apparently Nunes would like it to be known that he thinks it breaks the law to refer to him as a "presidential fluffer and swamp rat." Also, the "taint team" reference apparently makes it clear that Nunes and his lawyer don't understand puns. Which, you know, not a good look.

And then the part that is getting the most attention of all:

Many of the tweets were vile and repulsive, including tweets that depicted Nunes engaged in sexual acts with the President:

Right.

On to Devin's Cow.

Defendant, “Devin Nunes’ cow”, a person who, with Twitter’s consent, created and maintains an account on Twitter (@DevinCow) for the sole purpose of attacking and defaming Nunes. [https://twitter.com/devincow?lang=en]. @DevinCow has 1,204 followers. Like Devin Nunes’ Mom, Devin Nunes’ cow engaged a vicious defamation campaign against Nunes that lasted over a year. Devin Nunes’ cow has made, published and republished hundreds of false and defamatory statements of and concerning Nunes, including the following: Nunes is a “treasonous cowpoke”; “prosecutors” were “investigating Devin Nunes”; “Nunes needs to be investigated. He knew the truth, yet conspired with a criminal, @realDonaldTrump, to conceal the facts from the investigation. Nunes is a criminal too”; “718 more days until your term is up, Devin. Unless Mueller indicts you first”; “724 more days, Devin, unless the indictment comes first”; “It’s on, Ranking Member Nunes. #nunesindictment”; “Devin Nunes is a traitor”; “Devin Nunes used Leadership PAC funds on luxury vacay in his family’s native Portugal”; Nunes hung out with the Proud Boys at a private invite-only fundraiser; “Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison”; “Devin is whey over his head in crime … I bet @DevinNunes’ cocaine yacht and underage prostitutes won Trump over #AlphaOmega!”

Incredibly, the lawsuit also whines about two other satirical accounts mocking Nunes, but doesn't sue them:

Among these additional Twitter accounts are “Fire Devin Nunes” (@fireDevinNunes) and “Devin Nunes’ Grapes” (@DevinGrapes). The additional Twitter accounts followed the same pattern as @DevinNunesMom and @DevinCow, and published the same false and defamatory statements Nunes was involved in underage prostitution, etc. Fire Devin Nunes published memes of Nunes in prison attire. In a July 30, 2018 post, Devin Nunes’ cow retweeted the following:

Complaining that one of the satirical accounts mocking you retweeted another satirical account mocking you does not suggest you're a big believer in free speech, Nunes.

Anyway, two other points on all of this. As first pointed out by Gabriel Malor, the supposed free speech supporting Devin Nunes first argues that "The ability to use Twitter is a vital part of modern citizenship" and that "Twitter is essential for an individual to . . . engage in any level of political organizing in modern America" just a few paragraphs before demanding that Twitter should permanently suspend Liz Mair's account. It actually goes beyond that. It doesn't just say these accounts should be permanently suspended, but that all of their likes should be removed.

In order to protect Nunes’s property interests and his reputation, Nunes requests the Court (a) to Order Twitter to reveal the names and contact information of the persons behind the accounts “Devin Nunes’ Mom”, “Devin Nunes’ cow”, “Fire Devin Nunes” and “Devin Nunes Grapes”, and (b) to permanently enjoin and order Twitter to suspend @LizMair, @DevinNunesMom and @DevinCow and to deactivate all hyperlinks to all tweets, retweets, replies and likes by @LizMair, @DevinNunesMom and @DevinCow that contain false and defamatory statements about Nunes.

Yeah, you see, while Twitter can make moderation decisions on its own, no court can order such a result, as it would clearly violate the First Amendment. You know, that thing that Nunes is supposedly sworn to protect.

The other key point. As the lawsuit notes, the @DevinCow account had 1,204 followers when the lawsuit was filed. This morning, just 1 day after the lawsuit was filed, it currently has 106,000. And it will probably have more by the time you look at it. The @DevinNunesMom account has been suspended by Twitter, however. Still, congrats to Devin Nunes for telling lots of people about these accounts, and just what kinds of satire you are unable to live with, and which you insist requires people pay you $250 million for.

Despite the fact that both Twitter and Nunes are based in California, Nunes chose to file the lawsuit in a local court in Virginia. Twitter and the other defendants may be able to remove it to federal court, but Virginia's anti-SLAPP law is not nearly as strong as California's. In particular, Virginia's anti-SLAPP law does not do the one thing most important in anti-SLAPP statutes: allow the defendants in SLAPP suits to stop lawsuits before they get ridiculously expensive:

Unlike California and other states, the Virginia statute does not create a special procedure for filing anti-SLAPP motions requiring judge’s to conduct an early assessment of the plaintiff’s probability of success; there is no presumptive limitation of discovery, and no provision for an interlocutory appeal when anti-SLAPP motions are denied.

That means that, as ridiculous as this lawsuit obviously is, it may still end up costing the defendants a lot of money to get it tossed out. And, thus, we have a case in which an elected official is using the burdens of the legal system to tie up some of his critics in a wasteful, time-consuming, expensive mess that could take years to resolve. That's an incredibly shameful thing for a politician who literally supported a bill against "frivolous lawsuits." Devin Nunes is deserving of mockery for a variety of reasons, and this lawsuit is one of them.

Filed Under: cda 230, conservative bias, devin nunes, devin nunes cow, devin nunes mom, free speech, frivolous lawsuits, intermediary liability, liz mair, section 230, shadow banning, thin skin
Companies: twitter

Texas Senator Who's Experienced Some Press Criticism Introduces Bill To Gut State's Anti-SLAPP Law

from the fixer-here-with-the-fixes dept

Everything's bigger in Texas. Even the free speech protections. Texas has one of the strongest anti-SLAPP laws in the nation. These protections against bogus, speech-chilling lawsuits are so big they even covered a US President who complained libel laws in America were too restrictive, resulting in a swift dismissal of a defamation lawsuit brought against him over a fairly innocuous, if invective-loaded, tweet.

Some Texas legislators like the bigness of their home state, but not so much the anti-SLAPP law that deters bogus lawsuits filed to silence critics. The Reporters Committee for Freedom of the Press brings news that a bill that would gut a substantial amount of Texas' anti-SLAPP protections has been introduced into the state Senate.

House Bill 2730 and SB 2162 would allow the entity accused of filing a meritless lawsuit to drop their case just days before a hearing. This effectively allows an entity to sue a media company for defamation, receive a hearing date, and then drop the lawsuit days before a hearing to avoid a bad ruling and the cost of the defendant’s legal fees.

The bills would also remove clearly articulated categories of protected speech relating to matters of public concern from the Texas anti-SLAPP law. The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern.

In addition, the bill would weaken protections for anonymous parties by exempting online commenters from the law's anti-SLAPP protections, and would give defendants only three days to file an anti-SLAPP motion when hit with a defamation lawsuit.

Why would legislation like this be needed? There's no good answer. And by that, I mean anyone agitating for an increase in baseless lawsuits is up to no good. I'm sure there's a certain number of people with power or connections to power who are irritated they simply can't threaten critics into silence with a strong anti-SLAPP law in place. Getting their bluff called by defendants now costs them money and that's an unacceptable outcome.

It could be Angela Paxton -- the senator who introduced the bill -- finds it too difficult to target her critics under the current law. The rookie legislator is also the wife of state Attorney General Ken Paxton. Angela Paxton has only been in office since January 8 of this year and she's already generated a ton of negative press, thanks to her initial legislative effort which seemed crafted specifically to ease her husband's legal woes.

In what state Sen. Angela Paxton describes as an effort to safely expand Texas’ burgeoning financial tech industry, the freshman Republican from McKinney has filed a bill that would empower the office of her husband, Attorney General Ken Paxton, to exempt entrepreneurs from certain state regulations so they can market “innovative financial products or services.”

One of those exemptions would be working as an “investment adviser” without registering with the state board. Currently, doing so is a felony in Texas — one for which Ken Paxton was issued a civil penalty in 2014 and criminally charged in 2015.

I'm not saying Paxton wants to start silencing her critics. But I'm not not saying that either. Her excuse for the husband-pardoning bill was that her constituents in the tech-heavy sector of Texas were looking for easing of restrictive regulations. So far, she hasn't made a similar statement about her constituents in Richardson suddenly developing concerns about Texas' anti-SLAPP restricting their restrictions of speech. All anyone can do it speculate about her motivations while being mesmerized by the new senator's blase approach to bad optics.

Filed Under: 1st amendment, angela paxton, anti-slapp, criticism, free speech, ken paxton, texas

NYTimes Reporter Gets Bogus Defamation Lawsuit Dismissed As Judge Philosophizes About SLAPP Suits

from the slapp-suits dept

Another day, another SLAPP suit. Back in 2015, NY Times reporter Eric Lipton wrote an interesting article detailing the close ties of the food industry with various academics in ways that some might find questionable. Most of the discussion focused on companies on both sides of the debate around whether or not there should be mandated labels on genetically modified foods (so called GMOs). And while it was one side of the debate that encouraged Lipton to look into this, he used Freedom of Information laws to get emails from a bunch of academic scientists working at state universities. This practice is a bit more controversial than other types of Freedom of Information laws -- which are normally used to access government records from those in actual government agencies. However, in the more recent past, FOIA laws have been used to access academic emails, noting (correctly) that since state universities are technically government entities, those emails are considered public records.

Some of those emails between the academics and industry reps were, perhaps, less than flattering. And so one of the academics -- Dr. Kevin Folta, the chair of the horticultural sciences department at the University of Florida -- decided to sue Lipton and the NY Times for defamation. Somewhat surprisingly, Lipton and the NY Times failed to get the case dismissed at the Motion to Dismiss stage (basically your first chance to get a case tossed), though the Florida court expressed significant concerns about the overall case.

To be sure, an article’s “spin,” grounded in the author’s opinion of the facts, is not actionable.... However, this Court cannot find as a matter of law that all of the statements and their alleged implications are not defamatory. A few of the article’s statements give this Court pause. For example, the article states that Plaintiff conceded that some could view him as “a tool of the industry.” ... But Plaintiff contests this assertion, claiming that Defendants twisted the reporter’s alleged accusation that Plaintiff was a tool of the industry during his interview and falsely reported that Plaintiff volunteered the concession.... Such an admission, reportedly from the mouth of a researcher in academia, could very well injure that researcher’s reputation among his peers. As would the statement that Plaintiff “defended” or “promoted” Monsanto’s products. Viewing the facts in the light most favorable to Plaintiff, this Court is unable to determine as a matter of law whether these statements are defamatory. This Court will not narrow the claim any further at this stage.

The court also had some questions about whether or not Lipton and the NY Times were protected by the fair reporting privilege, which (more or less) says that it's not defamatory for news organizations to report on documents obtained by the government. And, thus, the case had to go through another (expensive) round up to the summary judgment stage, wherein the court, thankfully, dismissed the entire case.

The judge starts by exploring the question of whether or not the quotes from the various emails are covered by the fair reporting privilege, and where the court was not ready to agree that it was in the earlier stage, here it notes it's obvious that these emails are covered by that privilege:

Emails sent to or from a public university email address—and related to the official business of that university—are public records.... Personal emails present on a government agency server are not public records, as “[t]he determining factor is the nature of the record, not its physical location.” ... Plaintiff’s emails are related to official agency business. Although Plaintiff opposes Defendants’ characterization of his emails,... this argument is undercut by his own assertions of the centrality of public and industry engagement to his position at UF. See, e.g., ECF No. 64-41, at 2 (detailing duties and referring to letter from Plaintiff’s “direct supervisor”); ECF No. 64-40, at 1–2 (letter from Plaintiff’s supervisor indicating that his position requires interpreting and delivering scientific results to the public as well as “integrat[ing] with industry and interact[ing] with companies”).

Plaintiff’s argument that his emails are not public records because they are not “intended to perpetuate, communicate, or formalize knowledge of some type” is also unpersuasive.... The court in Shevin recognized that inter- and intra-office memoranda could constitute public records, even when only in draft form or when directed to file.... Only “rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation” were provided as examples of items falling outside the public records label.

Thus, his emails are public records, and because, as such, they were handed over by the government of Florida, using them is protected by the fair reporting privilege.

In summary, this Court has determined that Plaintiff’s emails, as produced by UF, have both been disclosed by a government agency and constitute public records. As a result, they can form the basis of the fair report privilege.

The next question, though, is whether or not Lipton made a "fair and accurate" report of those emails. The court lumps the various statements at issue in the case into different categories, and looks at each of them, and whether or not the reporting was fair and accurate -- and in each case concludes that it was. The fact that some of the reporting was characterized in a way that Folta didn't like doesn't change that.

Plaintiff would prefer this idea to be communicated more neutrally—perhaps as a statement that he often explains the science of GMO technologies. But this preference is not the yardstick by which statements in a news report are measured. Defendants’ statements must be only “substantially accurate,” and Defendants have a right to focus and color their report to capture and hold readers’ attention.

Some of the claims were that Lipton was selectively quoting the emails, and thus portraying Folta unfairly, but the court doesn't buy it:

Plaintiff objects to Defendants’ omission of several sentences, arguing that the abbreviated version presents the conversation in a completely different light.... The omitted sentences essentially state that the author is “grateful that academics like [Plaintiff] are willing to speak out on the science in this area to the public” and thank Plaintiff for “supporting science and for educating those who are open to science.” ... It is not apparent that the inclusion of these sentences would at all change the effect of the statement in an average reader’s mind. If anything, their inclusion would likely strengthen the theme of industry executives seeing value in professorial allies. As a result, Defendants provided a fair and accurate abbreviation of the email in question, so the statement is covered by the fair report privilege.

More generally, Defendants are under no obligation to include additional information that would portray the Plaintiff in a more favorable light. The press can select the focus of their own publications, without regard to presenting both sides of every issue.

What's quite interesting after that is that the judge goes on a bit of a philosophical discussion about the use of defamation laws these days to silence the press, even alluding to President Trump's wish to "open up libel laws." It's quite an interesting read:

Given the current climate, it is important to recognize the critical nature of the privilege and the necessity of its expansive application. Today’s environment has created a unique prism for defamation actions and the protections intended to ensure a free press. When politicians plan to “open up our libel laws,” and then after winning elections, continue to pummel the press and decry anything unflattering as “fake news,” it is clear that the Fourth Estate is under attack. When those in power describe lawful investigations as witch hunts and “[c]arefully sourced journalism” as “fake news from the enemies of the people,” it is especially important for the judiciary to consider carefully its role in providing the media ample space to exercise their First Amendment rights....

Beyond these verbal and 140-character attacks, there is also evidence to suggest that the media is losing in libel and privacy suits much more often and at a greater cost than in the past. RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U.L. Rev. Online 47, 58 (2017). The press has won only 39% of the privacy and libel cases at trial since 2010. Emily Bazelon, Billionaires vs. the Press in the Era of Trump, N.Y. Times (Nov. 22, 2016), https://www.nytimes.com/2016/11/22/magazine/billionaires-vs-the-press-in-the-era-of-trump.html. The average award granted against media defendants in the 1980s was $200,000; the median damage award has now grown to $1.1 million. Id. Today, it seems that super-wealthy individuals—undeterred by the negative outcomes and market forces that used to prevent many defamation suits—can treat “suing the press as an investment” and can pursue their objectives by funding cases and waiting for the right combination of issue, judge, and jury.

The judge then notes that while this is not like a typical SLAPP suit of a wealthy individual trying to silence the press, it's still important to protect a free press in this age:

This case is not one cooked up by billionaire opponents of a free media. Plaintiff seeks only a remedy for the reputational damage he alleges he suffered because of Defendants’ publication. Plaintiff would have this Court apply a narrow understanding of the fair report privilege—either through exempting his emails from the definition of public records or by applying a considerably harsher “fair and accurate” reporting standard. Despite this Court’s sympathy for and understanding of Plaintiff’s case, it cannot act as Plaintiff suggests. A cramped reading of the privilege would undercut its very purpose. It would open the door to far less meritorious suits by far less scrupulous plaintiffs, and it would contribute to the ongoing chipping-away of the rights and privileges necessary to the press’s ability to play its intended role as government watchdog. This Court will not do so.

The court then discusses a few remaining claims that were not from the emails, and thus not subject to the fair reporting privilege, but finds none of them defamatory, noting that they are either opinion or simply "not susceptible of a defamatory meaning" in the case of Lipton saying that Folta had "conceded" that he could be seen as a "tool of industry."

Then, the judge goes back to philosophizing about the state of media and defamation these days:

In today’s world of “fake news” and near-constant attacks on the traditional media, this Court is especially sensitive to upholding the legal protections that enable the press to act effectively in its essential task of policing the government.

Nice to see a judge recognizing these things.

I will note two surprises with this. First of all, even though Florida has a fairly broad anti-SLAPP law, it does not appear that the NY Times and Lipton sought to use it. The judge never even mentions anti-SLAPP issues at all. Perhaps there was a reason for this, but it's still a bit surprising, nonetheless. The second surprise is that there doesn't appear to be any discussion on the "actual malice" standard or whether or not Folta was considered a public figure. Perhaps these issues were decided earlier in the proceedings (I did not go through the entire docket), but it seems like (a) Folta would likely qualify as a public figure, and (b) even given everything else, it's hard to see how Folta could have made it over the "actual malice" hurdle. I guess the judge didn't even need to go there, given that all the claims were easy to dismiss on other grounds.

Overall, a good win for a free press and the First Amendment, though again upsetting that yet another reporter had to deal with such a lawsuit.

Filed Under: 1st amendment, anti-slapp, defamation, eric lipton, foia, free speech, gmos, kevin folta, slapp
Companies: ny times

UN Human Rights Expert Warns EU Not To Pass Article 13

from the it-will-be-bad dept

The UN Special Rapporteur on freedom of expression has put out another warning that the EU's move towards approving the EU Copyright Directive, and Article 13 in particular, is inconsistent with human rights standards. That's the polite way of saying that it's going to trample all over the public's rights, and especially rights concerning free speech.

“Europe has a responsibility to modernise its copyright law to address the challenges of the digital age,” said the UN’s Special Rapporteur on freedom of expression ahead of a critical vote on the Directive. “But this should not be done at the expense of the freedom of expression that Europeans enjoy today.”

“Article 13 of the proposed Directive appears destined to drive internet platforms toward monitoring and restriction of user-generated content even at the point of upload. Such sweeping pressure for pre-publication filtering is neither a necessary nor proportionate response to copyright infringement online.”

Kaye rightly notes that the proposal, as it stands today, would also entrench the biggest internet companies, rather than enabling real competition:

“In the long run, this would imperil the future of information diversity and media pluralism in Europe, since only the biggest players will be able to afford these technologies.”

He also calls out the fact that this proposal is vague where it needs to be specific, and yet stupidly specific in situations where the drafters clearly don't understand the technology or the nature of expression on the internet:

In the absence of specific requirements on platforms and Member States to defend freedom of expression, it is far from clear how either will comply with the Directive’s proposed safeguards, such as the requirement that “quotation, criticism, review” and the “use [of copyrighted works] for the purpose of caricature, parody or pastiche” be protected, the Special Rapporteur said.

“Even the most experienced lawyers struggle to distinguish violations of copyright rules from exceptions to these rules, which vary across Member States,” Kaye added. “The lack of clear and precise language in the Directive would create even more legal uncertainty.”

“Misplaced confidence in filtering technologies to make nuanced distinctions between copyright violations and legitimate uses of protected material would escalate the risk of error and censorship. Who would bear the brunt of this practice? Typically it would be creators and artists, who lack the resources to litigate such claims.”

It's the last point above that's most important. Even as some content creators are supporting Article 13, the real impact on them will be incredibly damaging. As tons of YouTube creators have learned over the past few years, automated filters frequently create more headaches than they're worth. Legitimate content is regularly taken down, and it's extra difficult for independent creators to make themselves heard. And this will become much worse in a post-Article 13 world, where you have less competition, since only a few internet giants can deal with the requirements of the law.

Filed Under: article 13, censorship, copyright, david kaye, eu, eu copyright directive, free speech, human rights, un

Appeals Court Upholds Dismissal Of Defamation Lawsuit Against Actor James Woods

from the an-obvious-conclusion,-but-one-that-needed-to-be-reached-anyway dept

James Woods -- saved from a defamation lawsuit by a question mark -- has just had his dismissal affirmed by the Sixth Circuit Court of Appeals. Whatever schadenfreude there was to be enjoyed by seeing Woods hoisted on his own litigious petard was swiftly dispelled by the ridiculousness of the lawsuit, which posited that Woods' careless question tying the plaintiff to [gasp!] Bernie Sanders' presidential campaign rose to the level of actual defamation. All we can hope is Woods handles this victory with a bit of grace, rather than gloating over his opponent's death, should she unfortunately precede him to the Great Beyond.

The lower court did take a couple of shots at Woods during its dismissal of the suit, pointing out he was as uncooperative as possible when the plaintiff, Portia Boulger, tried to serve him. Boulger was offended by Woods' tweet that portrayed her as a Bernie plant trying to sabotage Trump's impeccable reputation by flinging Nazi salutes during one of his rallies. Here's a quick summary of the supposed defamation, taken from the appeals court decision [PDF]:

On March 12, 2016, Twitter user @voxday posted the Nazi salute photograph, together with a photograph of Portia Boulger and a caption identifying Boulger as an “Organizer (Women for Bernie).” (Def. Mot. for J. on the Pleadings, R. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement, “The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.” (Id.) Shortly thereafter, Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000 followers on Twitter.

After being notified by Boulger's lawyer that she was seeking to sue him, Woods issued a retraction and an apology. Boulger argued the damage had already been done. She had been the recipient of several unpleasant communications from Woods' followers, which apparently included death threats.

The Appeals Court also takes a shot at Woods for dodging service from Boulger, pointing out the ridiculousness of him attempting to dismiss a lawsuit he claimed he hadn't been properly served with yet.

As the district court noted, although Woods raised the defenses of insufficient service of process and lack of personal jurisdiction in his answer, he immediately filed a motion for judgment on the pleadings in which the defenses were not included. The motion for judgment on the pleadings was filed several months early—because Woods had not yet been served—and necessarily sought a decision on the merits. Woods’s motion was thus “inconsistent with the idea that the district court lacked personal jurisdiction over the defendant[].”

[...]

The filing of the motion for judgment on the pleadings therefore created a reasonable expectation that Woods would defend the suit on the merits. Any other holding would create a perverse outcome. One can imagine a litigant asking the court to proceed on the merits, and then, only if the court’s decision is unfavorable, seeking to re-assert jurisdictional defenses.

The decision then spends several pages diving into the thick weeds of Ohio defamation law. There's a four-prong test applied at the state level to determine whether or not a question is a "statement of fact." After a lot of discussion, the court finally gets to the point: the question mark -- coupled with the actor's opinionated Twitter feed -- makes it clear Woods was asking followers to make that call themselves, rather than directing them to arrive at a foregone conclusion. That many of them skipped the whole "decide for yourself" stage isn't Woods' fault, nor does it turn a question into a libelous statement of fact.

Here, the tweet at issue is reasonably susceptible to both a defamatory meaning—that Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent meaning—that Woods was merely asking his followers a question. Because Woods’s tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, is not actionable.

There's also the matter of context. As the court sees it, the opinionated Woods could get away with posing a question like this. The New York Times perhaps not so much.

A review of Wood’s Twitter feed from March 12, 2016, shows that although he posted news articles, his tweets were frequently accompanied by his own colorful commentary. [...] These tweets illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole—characteristics more likely seen in an opinion, rather than a statement of fact. See Scott, 496 N.E.2d at 708. Thus, the general context could lead a reasonable reader to believe the tweet at issue was not a statement of fact.

[...]

Twitter is a medium for users to express both opinions and disseminate news. For example, a Twitter user who tweets his or her thoughts on various celebrities is an account that is more analogous to an editorial section of a newspaper. Cf. Vail, 649 N.E.2d at 185–86 (finding that a column that appeared on the Forum page of the newspaper and titled “Commentary” gave a reader the message that the column would convey the personal opinion of the writer, as distinguished from a news story). But the Twitter account of an online news source, such as the New York Times, is not meaningfully distinguishable from a hard copy news story. Consequently, it is clear that Twitter can be used to disseminate both factual accounts and assertions, as well as commentary and opinion.

This breakdown of Twitter seems elementary and even a bit unnecessary, but the court is reminding readers (and plaintiffs) that context matters. It always does. Unfortunately, many plaintiffs in defamation lawsuits want the court to strip commentary of its context to make it easier for them to secure a victory. Fortunately, our courts have generally been very protective of speech and extremely hesitant to hand down rulings that could restrict the free exchange of commentary and opinion. It's unfortunate Woods' followers decided his somewhat disingenuous question granted them permission to harass and threaten Boulger. But those disgusting responses are the responsibility of the disgusting people making them. The court made the right call, ensuring Twitter in all its greatness and awfulness remains a freewheeling, often-horrifying marketplace of ideas.

Filed Under: 6th circuit, anti-slapp, defamation, free speech, james woods, portia boulger

VP Of 'Students For Free Speech' Sues Critic For (Among Other Things) Calling Him A 'Free Speech Asshole'

from the free-speech-for-me,-not-for-thee dept

What is it with these Canadian "free speech defenders" suing their critics for their free speech? We've already covered the ridiculous lawsuits by Jordan Peterson and Gavin McInnes against some of their critics, and now we can add a lawsuit by Michele Di Franco, whose Twitter profile notes that he is the "VP Finance" for the "uOttawa Students for Free Speech" club.

You would think that, as such, Di Franco would recognize that others' free speech might sometimes reflect negatively on him, and be able to take it. But, nope. In January, Michael Bueckert wrote an article on Medium discussing how Doug Ford's government did not appear to consult many actual students in forming a plan to defund many student organizations at universities. Bueckert's article notes that it appears the only students who were consulted were the University of Ottawa Free Speech club, based on a roundtable it held that Doug Ford attended. Bueckert had some significant concerns about this, noting that (1) a club like that is not representatives of students and (2) Di Franco appeared to regularly associate with various individuals and groups whose focus was often on supporting the right to spew bigotry on campus. Bueckert tweeted out his article a bunch, often referring to the "alt-right" and in one case talking about "free speech assholes who are freely giving these white supremacists a paid platform."

Di Franco lawyered up, sending a threatening cease and desist, demanding that Bueckert take down the post, stop referring to Di Franco as anything remotely connected to bigotry or the alt-right, provide a written apology and retraction, and pay $2,000 to the lawyers. Bueckert hired some lawyers of his own to respond. It's a good response:

I have had an opportunity to review your client’s claims. It appears as though there has been a misunderstanding. My client formulated his opinion that your client’s politics and the political values of his organization are fairly described as ‘alt-right’ or sympathetic to the alt-right on the basis of your client’s repeated promotion and endorsement of various public commentators, politicians and other personalities that openly espouse either far-right or alt-right views and are generally regarded as representing or associated with the alt-right, despite their personal rejection of that label. These individuals include Gavin McInnes, Janice Fiamengo, Jordan Peterson, Tim Moan, Joseph Watson, Steven Crowder, Jack Posobiec, Mike Cernovich, Milo Yiannopoulos, Lauren Southern, James Damore, and Maxime Bernier, among others.

Your client has never made any public attempt to disassociate himself with the discriminatory views espoused by these commentators. The only information available has led my client to fairly infer that your client endorses the express and implicitly discriminatory views of these individuals.

Indeed, the response letter includes nine different examples of Di Franco expressing ideological alignment with people in that list, and notes that even denying being a member of the alt-right has become something of a cliche among those who most of the rest of the world consider in their opinion to be members of the alt-right.

And, of course, in response to all of this, Di Franco sued Bueckert for defamation. Among the claims in the lawsuit, it says that merely calling Di Franco a "free speech asshole" is defamatory. Really.

This lawsuit would be laughed out of a US court. First of all, nearly all of the statements are clearly ones of opinion. Second, many of them (including the "free speech asshole" one) are from tweets that don't even mention Di Franco, but are talking about the types of people that Di Franco has associated with. And, yes, it's not fun at all being called an asshole or a bigot or whatever, but if you're really going to be out there claiming to be in favor of "free speech," then you kinda have to suck it up when people say their not-so-nice opinions about you. Otherwise, it does kind of make you a free speech hypocrite, and quite possibly -- in my opinion -- a "free speech asshole."

Since this is Canada, rather than the US, defamation law is not quite as clear-cut -- though hopefully Bueckert still wins. It is true that the bar for defamation is much lower in Canada than in the US, but "fair comment" remains a defense against defamation, and that includes stating opinions about matters of public interest. Moreover, the province of Ontario (where the lawsuit was filed) has a pretty good anti-SLAPP law (stronger than the anti-SLAPP laws of some US states) that will likely be the first line of defense and, hopefully, will get this case tossed out quickly with Di Franco on the hook for Bueckert's legal fees.

Of course, as we see every time one of these situations shows up, supporters of those suing suddenly start twisting themselves into amazing yoga postures trying to "defend" suing people for their opinions. Among them is Jonathan Kay, former opinion writer at Canada's National Post and now an editor of Quillette. Kay has managed to rise above some popular free speech bad-takes in the past: though he's seriously concerned about "mob-based" censorship of conservative ideas, he correctly recognizes that Trump is a more direct threat to true free speech, and though he's seriously concerned about social media censorship, he correctly notes that private platforms can kick off whoever they like. But when it comes to the use of libel lawsuits to silence critics, he appears to be going with the angle that freedom of speech isn't relevant to civil actions, and that it's wrong to think a dubious libel lawsuit reflects on someone's commitment to free speech:

Alas, I imagine that, as with the other cases mentioned earlier, those who align in viewpoints with Di Franco and others will continue to twist themselves around in trying to justify this use of the government to silence a critic, while at the same time pretending to still support "free speech." But, just to be clear: suing other people for saying their mean opinions about you is not supporting free speech. It is very much anti-free speech and, again in my opinion, kinda makes you an asshole.

Filed Under: canada, defamation, doug ford, free speech, free speech asshole, michael buekert, michele di franco, students for free speech

Australia Threatening Over 100 Journalists For Accurately Reporting On Cardinal Pell's Sex Abuse Trial

from the free-speech? dept

The Australian concept of free speech still boggles the mind -- as it appears they're not very big on supporting it. Yesterday we had our story about how journalists were finally able to report on the conviction of Cardinal George Pell, the former Vatican CFO (and often described as the 3rd most powerful person in the Vatican), over some fairly horrific child sexual abuse claims. The conviction had happened back in December, and we were among those who wrote about it at the time, focusing on the ridiculousness of the Australian court's "suppression order," barring any of the reporters who were covering the trial from writing about either the conviction or the existence of the suppression order. The ostensible reason was that there was a second trial still necessary for Pell. However, as I've noted in earlier posts, the US handles this in a much better, and less speech-suppressing manner: by (1) asking potential jurors about their familiarity with the case, and (2) forbidding just the jury pool from further researching the case. It may not be perfect, but the system does work pretty well, and avoids a massive speech suppressing blanket order from a court that would appear to violate any concept of a "free press" in Australia.

The situation with the Pell suppression order was even worse, actually, because it impacted many news organizations outside of Australia, out of fear that breaking the suppression order might lead to consequences for local staff in Australia (or even possibly abroad). Some publications in Australia certainly found ways to express their displeasure about the suppression order, such as the Herald Sun, which had the following cover page:

However, it impacted other publications as well. Many international news organizations refused to cover the situation at all, and the NY Times took the surprising step of refusing to publish any stories about the case online, but it did run stories in its print edition -- but not in the Australian print edition. This is somewhat frightening if you support freedom of the press.

But, now things are even more frightening. Apparently, Australia has started sending "notices" out to journalists who in some way covered either the case or the gag order before it was lifted:

But now, more than 100 notices have been sent to journalists, bloggers and media organizations, Bosland tells NPR from Australia. Kerri Judd, director of public prosecutions in Victoria state, notified recipients of an intent to charge them with offenses for their coverage of the trial.

Bosland described the charges as not just violating the suppression order but aiding and abetting gag order breaches in international media, scandalizing the court, and sub judice contempt.

It's unclear if these notices have only gone to Australian news organizations or journalists, but no matter how you look at it, this is despicable. The idea that accurately reporting on the news of a conviction in a horrific scandal is "scandalizing the court" is simply messed up. A site called Pedestrian.tv claims to have the text of the letter sent to news organizations, offering them a chance to respond before they face charges:

As you will be aware, George Pell is facing prosecution for historical child sex offences in the County Court, and a suppression order was made in relation to this matter on 25 June 2018.

I have considered the above publication, and it is my opinion that the above publication breaches the suppression order, has a definite and real tendency to interfere with the administration of justice and therefore constitutes sub judice contempt. is contemptuous by reason of it scandalising the Court. and aided and abetted contempts by overseas media.

At present, I intend to institute proceedings for contempt against you. However, I have determined to allow you the opportunity to respond and to draw any relevant matters to my attention, if you wish to do so, before I institute proceedings.

According to a report in the Guardian that is (correctly) critical of these suppression orders, the various media organizations in Australia are lawyering up to fight this:

The Melbourne lawyer Justin Quill, from Macpherson Kelley, is acting for a combined group of media organisations who will defend the charges, including the Nine newspapers and TV outlets, News Corp, Channel Ten, Mamamia and Macquarie Media.

As many as 100 editors, online content people and journalists are potentially in the frame.

As that article notes, this whole situation is completely nonsensical and disconnected from reality. It also notes that Victoria, in particular, seems to issue a ton of these suppression orders compared to other Aussie jurisdictions:

Again, the contempt case against the media seems like a fantastical disconnect with events as they transpired. Ultimately, the second trial was not prejudiced because it didn’t take place and that was not due to any prejudicial reporting.

The state of Victoria has a bit of a love affair with suppression orders, issuing them at more than twice the rate of New South Wales, which is a bigger jurisdiction with larger courts, more cases and more judges.

Perhaps that explains this latest move -- in which the only things that are actual scandals are the horrific acts of George Pell, a court suppressing the media and now Victoria prosecutors seeking to create a massive chilling effect by threatening the press for their reporting. Not included in that list: reporters doing their jobs.

Many of these orders are a direct affront to open justice, freedom of the media and the community’s right to know what is happening in the courts and society generally. They are often-times made unaccompanied by adequate reasons and there is plenty of difficulty finding out if and when they have been lifted.

Freedom of speech is supposed to be an article of faith in a democracy, key components of which are the rule of law and an independent media. Americans, more than most, hold it in high regard because they have a constitution that protects reporting on matters of public importance. In fact, if the Pell trial were held in the US it would be unconstitutional to suppress reporting of the proceedings.

And, given the responses to my previous posts, some will again point out that Australia is not the US. But this is still spitting on the very idea of a free press and free expression, and that's shameful.

Filed Under: australia, free press, free speech, gag order, george pell, injunction, prosecution, suppression order, threats

Don't Celebrate Copyright Being Used For Political Censorship Just Because You Don't Like The President

from the still-abusive dept

You may have heard the story recently of how the band REM got a video in a tweet taken down after Donald Trump had retweeted the video. CNBC has the details:

A satirical video using music from rock band R.E.M., which was shared by the Twitter account of President Donald Trump, has been removed from the social media site after a complaint by the publisher of the band's songs.

A lawyer for Universal Music Publishing Group had reached out to Twitter on Friday asking that the video -- which was first posted by another user -- be taken down from the platform, a source familiar with the situation told CNBC.

The clip, which runs more than two minutes in length, plays audio from R.E.M.'s early-'90s hit single "Everybody Hurts" over excerpts from Trump's Feb. 5 State of the Union address.

This started to spread around on Twitter, and I saw lots of people who hate the President celebrating over this victory in yanking the stupid video (and it was stupid) from his tweet. REM and bassist Mike Mills celebrated:

But, even if you absolutely loathe the President and his silly partisan gloating, you should be very concerned about this. And, I know, that some people are already screaming (because they did it already on Twitter when I first brought this up) that REM has "every right" to control its work how it wants to and that includes not letting the President use their music. That's mostly true. And the video may, indeed, have been infringing.

But the problem is that this wasn't used for any of the reasons that copyright specifically enables. It was flat out used because the band didn't like the politics or the political message. In other words, it was using the law to stifle political speech. That was the entire intent behind the move (REM and Universal have let other similar clips remain up) -- which REM and Mills are basically admitting with their tweets. They used copyright to censor a political message because they disagree with it. Copyright (in the US) isn't supposed to be used that way. Other countries have something called "moral rights," which would make such a takedown legitimate under moral reasons, but in the US copyright is explicitly an economic right, and not a moral one. And thus, any use of copyright -- even if otherwise legit -- is a form of copyfraud, in which the power of copyright is used not because of economic concerns, but directly to censor speech.

So even if you love REM and hate the President, if you believe in free speech, you should certainly be concerned about the use of copyright as a tool for outright censorship of speech someone didn't like.

Filed Under: censorship, copyright, donald trump, free speech, rem, tweets
Companies: twitter, universal music

Two Months Later, News Orgs Are Finally 'Allowed' To Report On Top Vatican Official's Child Molestation Conviction

from the suppressed-press dept

Back in December, we wrote about the insane attack on free speech perpetrated by the Australian court system, barring anyone from reporting on the fact that "third most powerful person in the Vatican," its CFO, George Pell, had been convicted of molesting choir boys in Australia in the 1990s. Only a very small number of news sites reported on this at all, out of fear of the Australian government going after them. Even the NY Times (of all sites) only published the story in its physical paper, and not online, to avoid the possibility that readers down under might see the story. We even got some pushback from some people for publishing the story, with them saying it was necessary to make sure Pell's second trial on similar charges was "fair." Of course, we've handled these issues differently in the US for decades, in a way that seems to work just fine: the press is free to report, but jurors are restricted from researching or reading about the case. That system inconveniences the fewest number of people, retains a system of fairness, and does not stifle a free and open press.

Either way, on Tuesday, the Australian court system finally lifted the gag order allowing official reports to finally be written. As for why the gag order was finally lifted? Apparently that all important second trial? It's been called off.

The Washington Post story above has many more details about the case that were kept secret, including the fairly graphic and horrifying details of what Pell did to some choir boys in the 1990s. It remains an insult to the work of the media that so many were forced to stay silent over these details. I recognize that not everywhere else has a First Amendment like the US does, and that protections for freedom of expression and freedom of the press vary from country to country, but Australia's press gag here is notable for keeping such important details secret and for scaring the media in other nations, including the US, from publishing their stories as well.

Filed Under: australia, free press, free speech, gag order, george pell, injunction, journalism, press, reporting, super injunction, the vatican

Company Wants New Hampshire Supreme Court To Let It Sue Anyone Who Calls It A Patent Troll

from the oh-really-now? dept

Over the years, there have been a few attempts -- usually by companies that most of us would call patent trolls -- to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the "patent troll" name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.

ATL decided it was going to keep trying. Tim Lee, over at Ars Technica, recently wrote about oral arguments in front of the New Hampshire Supreme Court in this case.

In Thursday's oral arguments at the New Hampshire Supreme Court, ATL attorney Steve Gordon urged the New Hampshire justices to overrule that initial dismissal of the lawsuit.

"The gist or sting of the statements at issue was that my clients were extortionists, shakedown artists, preying on small banks seeking to license patents that were of no value," Gordon said.

Gordon argued that none of this was true. Critics said ATL wasn't selling any products, but Gordon noted that his client did try to commercialize his patents many years ago. Critics said ATL was engaged in a shakedown. "This is not a shakedown," Gordon said.

This seems like an incredibly iffy argument. There have been many, many cases on similar types of claims, and such statements are not defamatory, as it's not possible to prove them directly "true" or "false" since they're very much in the eye of the beholder. The Phantom Touring case is a key one here, where the court ruling noted:

Many of the statements cited in the complaint and appellate brief either constitute obviously protected hyperbole or are not susceptible of being proved true or false. Such, for example, is the language in "The phantom of the 'Phantom' " quoting a critic who described the Hill production as "a rip-off, a fraud, a scandal, a snake-oil job." Not only is this commentary figurative and hyperbolic, but we also can imagine no objective evidence to disprove it. Whether appellant's "Phantom" is "fake" or "phony" is similarly unprovable, since those adjectives admit of numerous interpretations.

I can't see how ATL can get past that bar.

Another standard seen in weak defamation cases is seizing on a small error of terminology. In this case, back in 2012 ATL had key claims in some of its patents invalidated in the federal circuit. That didn't mean the entire patent was invalidated, but invalidating key claims can more or less kill off a patent. In this case, the defendants said that the patents had been invalidated, when it was actually just some key claims. ATL's lawyers argue this is defamatory. It is not.

At one point, Gordon argued that one of the defendants had defamed ATL by claiming its patents had been invalidated. Gordon said that this was false and defamatory because only certain claims of its patents had been invalidated; others remained valid.

But justices seemed skeptical. "Wasn't the gist of the statement correct?" one justice asked.

Indeed, having the gist of a statement being correct is a defense against defamation claims. That's why I find it kind of amusing that up above, ATL's lawyer used "gist" in suggesting that calling ATL a troll was defamatory. If you're the defamation plaintiff, you're generally not supposed to be the one bringing up "the gist."

Of course, from the hearing, it really does sounds like (note to ATL lawyers: this is my opinion) ATL is just trying to cost the defendants as much as possible, as its focus seems to be getting past the Motion to Dismiss stage and into discovery -- which can be the most expensive part of a case. Though, as Lee notes, ATL's reasons for wanting to move the case into discovery seems to be... because they want to get into discovery.

Gordon argued that ATL should have gotten a chance to build its case via discovery before a judge decides whether the case has merit. But when a justice asked what information he'd like to seek during the discovery process, the attorney's answer was a little vague. Gordon said that he'd like to depose defendants, asking questions like "what were the facts that you relied upon when you made a statement of shakedown?"

But it's not clear that these kinds of questions would be all that illuminating. The core of the defendants' case is that terms like "shakedown" are fundamentally matters of opinion. Courts have long held that opinionated terms like "rip-off" and "snake-oil" could not be defamatory. The defendants argue that labeling someone a troll or accusing them of blackmail falls into the same category.

Never read too much into how judges behave during oral arguments, but at least from Tim's reporting, it sounds like they're skeptical here. And they should be. Calling a company a patent troll is not defamatory. Nor is saying a patent was invalidated when it was really key claims. And trying to drive up legal fees by dragging a questionable case into discovery is quite obnoxious and an attempt to bully a company through abusive litigation.

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