California AG Says Journalist Broke The Law By Obtaining A List Of Convicted Officers Via A Public Records Request

from the you-crafty-bastards-used-the-law-to-harm-law-enforcement! dept

California journalists legally obtained a document no law enforcement agency wants them to have. Naturally, the state's best friend to bad cops, Attorney General Xavier Becerra, is claiming it's illegal for these journalists to possess a document handed to them in response to a public records request.

Thousands of California law enforcement officers have been convicted of a crime in the past decade, according to records released by a public agency that sets standards for officers in the Golden State.

The revelations are alarming, but the state’s top cop says Californians don’t have a right to see them. In fact, Attorney General Xavier Becerra warned two Berkeley-based reporters that simply possessing this never-before-publicly-released list of convicted cops is a violation of the law.

The UC Berkeley journalists asked for police misconduct documents from the California Commission on Peace Officer Standards and Training -- taking advantage of the state's new law that opens access to these long-hidden files -- and ended up with the entire list of law enforcement officers who have been convicted of crimes.

This list of names is very definitely of public interest. The journalists are vetting the list to ensure they haven't misidentified any of the 12,000 officers on the list and have not published it in full. Still, they're being told by the man at the top of the law enforcement food chain they've broken the law simply by taking possession of a document handed to them by a state agency. He has ordered the documents destroyed. Good luck with enforcing that. If anything, AG Becerra's incursions on the First Amendment will help ensure the information is published once it's been vetted.

What's included in the list of convicted officers is disturbing. I guess we should all be relieved these acts actually resulted in convictions. The long list of criminal acts includes possession of child porn, numerous acts of domestic violence, embezzlement, driving while intoxicated, and -- in one case -- impersonating an officer to purchase restricted weapons and ammo shortly after the officer lost his job.

These are facts the public deserves to know. That they've been hidden so long is an indictment of California's law enforcement agencies and the politicians who worked so tirelessly to ensure their misdeeds remained hidden. The AG stepping to tell journalists they can't have a document they already have is the wrong kind of audacious. Taxpayers pay the salaries of sworn police officers. They have a right to know how they're money is being spent and whether that money is being used to pay the salaries of officers who have broken the law.

Filed Under: california, criminal cops, foia, free speech, journalism, public records, transparency, xavier becerra

China Extends Its Censorship To Australian Books, Written By Australian Authors For Australian Readers

from the whatever-next? dept

News that China is extending its censorship to new domains barely provokes a yawn these days, since it's such a common occurrence. But even for those jaded by constant reports of the Chinese authorities trying to control what people see and hear, news that it is now actively censoring books written by Australian authors for Australian readers is pretty breath-taking. The Chinese government has done this before for single books whose message it disliked, but now it seems to be part of a broader, general policy:

Publishing industry figures have confirmed that the censors from the State Administration of Press, Publication, Radio, Film and Television of the People's Republic of China are vetting books sent by Australian publishers to Chinese printing presses, even though they are written by Australian authors and intended for Australian readers.

Any mention of a list of political dissidents, protests or political figures in China, including president Xi Jinping, is entirely prohibited, according to a list circulated to publishers and obtained by The Age and Sydney Morning Herald.

As the story in the Australian newspaper The Age explains, the reason why Chinese censors are able to impose their views on books designed for the Australian market is that it's cheaper to have books printed in China than in Europe, say, especially it if involves color illustrations. As a result, publishers can be faced with the choice of accepting Chinese demands, or not publishing the book at all because the costs are too high.

The list of taboo topics is long, albeit pretty specific to China. It includes mention of major Chinese political figures, such as Mao Zedong and Xi Jinping, as well as a list of 118 dissidents whose names may not be mentioned. Political topics such as Tiananmen Square, pro-democracy protests in Hong Kong, Tibetan independence, Uyghurs and Falun Gong are all out. Pornography is completely forbidden, but even artistic nudity can be censored. The Chinese authorities are very sensitive to how maps are drawn, since they can involve disputed borders. More surprising is the ban on mentioning major religions.

The Age article notes that the rules had been in place for some time, but largely ignored. Now, however, the censors are checking every page of every book, and enforcing the rules strictly. It's yet another sign of Xi Jinping's obsessive desire to control every facet of life -- even outside China, if he can.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: australia, books, censorship, china, free speech, printing

Beware The Rise Of Censorship Under The Guise Of Stopping Fake News: UK Regulators Push For Dangerous Plan

from the fake-news dept

When we last checked in with UK Parliament Member Damian Collins, he was creating fake news at a hearing he set up to scold Facebook for enabling fake news. If you don't recall, Collins held a very theatrical hearing, in which his big reveal was that Facebook had actually become aware of Russians hacking its API with billions of questionable requests back in 2014, years before anyone thought they were doing anything. Except, as became clear hours later, Collins completely misrepresented what actually happened. It wasn't Russians. It was Pinterest. And it wasn't billions of requests for data. It was millions. And it wasn't abusive or hacking. It was something going a little haywire on Pinterest's end. But, to Collins it was a smoking gun.

It appears that that little incident has not deterred Collins from his war on Facebook, in which he's using moral panic and fear mongering over "fake news" to try to censor content he doesn't like. Recently, Collins' committee -- the Digital, Culture, Media and Sport Committee -- published its big report on fake news, in which it calls for new regulatory powers to "oversee" what content goes on sites like Facebook. With the report, Collins put out quite the bombastic comment about all of this. Here's just a snippet:

“We need a radical shift in the balance of power between the platforms and the people. The age of inadequate self regulation must come to an end. The rights of the citizen need to be established in statute, by requiring the tech companies to adhere to a code of conduct written into law by Parliament, and overseen by an independent regulator."

There are all sorts of sketchy and dangerous ideas in this report, but I want to focus on the one that is most scary. A plan to regulate the amorphous concept of "harmful content."

The Report repeats a recommendation from the Interim Report for clear legal liabilities to be established for tech companies to act against harmful or illegal content on their sites, and the report calls for a compulsory Code of Ethics defining what constitutes harmful content. An independent regulator should be responsible for monitoring tech companies, backed by statutory powers to launch legal action against companies in breach of the code.

Companies failing obligations on harmful or illegal content would face hefty fines. MPs conclude: “Social media companies cannot hide behind the claim of being merely a ‘platform’ and maintain that they have no responsibility themselves in regulating the content of their sites.”

It's notable that this says "harmful or illegal content," as it's an explicit recognition that what it considers "harmful" content might actually be perfectly legal. Except, apparently, it might be illegal for an internet company to host it. This is going to lead to serious problems.

Already, free speech experts are quite reasonably worried about this report. Index on Censorship posted a note warning how this will almost certainly be abused.

Despite a number of reports, including the government’s Internet Safety Strategy green paper, that have examined the issue over the past year, none have yet been able to come up with a definition of harmful content that goes beyond definitions of speech and expression that are already illegal. DCMS recognises this in its report when it quotes the Secretary of State Jeremy Wright discussing “the difficulties surrounding the definition.” Despite acknowledging this, the report’s authors nevertheless expect “technical experts” to be able to set out “what constitutes harmful content” that will be overseen by an independent regulator.

International experience shows that in practice it is extremely difficult to define harmful content in such a way that would target only “bad speech”. Last year, for example, activists in Vietnam wrote an open letter to Facebook complaining that Facebook’s system of automatically pulling content if enough people complained could “silence human rights activists and citizen journalists in Vietnam”, while Facebook has shut down the livestreams of people in the United States using the platform as a tool to document their experiences of police violence.

“It is vital that any new system created for regulating social media protects freedom of expression, rather than introducing new restrictions on speech by the back door,” said Index on Censorship chief executive Jodie Ginsberg. “We already have laws to deal with harassment, incitement to violence, and incitement to hatred. Even well-intentioned laws meant to tackle hateful views online often end up hurting the minority groups they are meant to protect, stifle public debate, and limit the public’s ability to hold the powerful to account.”

Somehow, it seems quite unlikely that Collins has any interest in paying attention. He has made it clear from early on that he's mad at Facebook, and no one's concerns about how his anger might lead to very, very bad policy that stifles free expression way beyond Facebook is going to make the slightest bit of difference apparently.

Index on Censorship also highlights the odd metrics used in Collins report -- such as pointing to a vast increase in the number of moderators Facebook has hired in Germany after its joke of a hate speech law went into effect. After pointing out problems with that law, it notes:

“The existence of more moderators is not evidence that the laws work,” said Ginsberg. “Evidence would be if more harmful content had been removed and if lawful speech flourished. Given that there is no effective mechanism for challenging decisions made by operators, it is impossible to tell how much lawful content is being removed in Germany. But the fact that Russia, Singapore and the Philippines have all cited the German law as a positive example of ways to restrict content online should give us pause.”

It appears clear that it will not give Damian Collins pause, because he's on a mission to grandstand against Facebook as much as he can, even if it means widespread censorship is the result.

Filed Under: damian collins, fake news, free speech, harmful content, regulations, social media, uk

Catholic School Teen's Lawyers File $250M Defamation Suit Against The Washington Post; Fail To List Any Actual Defamation

from the pro-se-but-for-retained-legal-representation dept

Lawsuits were threatened after students from a Kentucky Catholic school were portrayed as engaging in racist behavior during an anti-abortion march at the nation's capital. An edited video swiftly circulated the internet, showing student Nick Sandmann facing off with a Native American protester while wearing a seemingly-smug file on his face and a Make America Great Again hat on his head.

More footage of the incident appeared later providing a bit more context, making the obvious racism seem less obvious. But the Twitter ship had sailed and there was little hope of turning it around. Lessons could have been learned from rushing to judgment, but Nick Sandmann and his family's lawyers have decided this lessons should be taught via libel lawsuits. They've got an uphill battle as nearly everything said about Sandmann and the incident was protected opinion, but a lack of credible arguments has never prevented lawsuits from being filed.

As Buzzfeed reports, one of the first targets is the Washington Post. Sandmann's complaint [PDF], composed by attorneys Lin Wood and Todd McMurtry, is about half op-ed, half federal complaint. Here's the lead off:

The Post is a major American daily newspaper published in Washington, D.C. which is credited with inventing the term "McCarthyism" in an editorial cartoon published in 1950. Depicting buckets of tar, the cartoon made fun of then United States Senator Joseph McCarthy's "tarring" tactics of engaging in smear campaigns and character assassination against citizens whose political views made them targets of his accusations.

In a span of three (3) days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann (“Nicholas”), an innocent secondary school child.

The Post wrongfully targeted and bullied Nicholas because he was the white, Catholic student wearing a red “Make America Great Again” souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C. when he was unexpectedly and suddenly confronted by Nathan Phillips (“Phillips”), a known Native American activist, who beat a drum and sang loudly within inches of his face (“the January 18 incident”)

Moving along…

The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump (“the President”) by impugning individuals perceived to be supporters of the President.

[Scrolls to the bottom of the filing to make sure it wasn't composed by Larry Klayman...]

In this country, our society is dedicated to the protection of children regardless of the color of their skin, their religious beliefs, or the cap they wear.

But the Post did not care about protecting Nicholas. To the contrary, the Post raced with a reckless disregard of the facts and truth because in this day and time there is a premium for being the first and loudest media bully.

The Post wanted to lead the charge against this child because he was a pawn in its political war against its political adversary – a war so disconnected and beyond the comprehension of Nicholas that it might as well have been science fiction.

Let's just try to find the factual allegations. It's established that Sandmann's lawyers wish to offer their opinion that the Washington Post is a bully that targeted Nick Sandmann because he supported a president the Post dislikes. But that's all that's been established -- despite the use of the term "defamation" here and there -- by the time the lawsuit drops its first mention of damages. Some weird eye-for-an-eye demand is being made by Sandmann's attorneys.

In order to fully compensate Nicholas for his damages and to punish, deter, and teach the Post a lesson it will never forget, this action seeks money damages in excess of Two Hundred and Fifty Million Dollars ($250,000,000.00) – the amount Jeff Bezos, the world’s richest person, paid in cash for the Post when his company, Nash Holdings, purchased the newspaper in 2013.

Eight pages in, we finally have an allegation that doesn't sound like an angry blog post:

On January 19, 20 and 21, the Post ignored the truth and falsely accused Nicholas of, among other things, “accost[ing]” Phillips by “suddenly swarm[ing]” him in a “threaten[ing]” and “physically intimidat[ing]” manner as Phillips “and other activists were wrapping up the march and preparing to leave,” “block[ing]” Phillips path, refusing to allow Phillips “to retreat,” “taunting the dispersing indigenous crowd,” chanting “build that wall,” “Trump2020,” or “go back to Africa,” and otherwise engaging in racist and improper conduct which ended only “when Phillips and other activists walked away.”

Seems straightforward except for a number of inconvenient facts. As the lawsuit admits, these reports were based on an edited video that led many, many people to the same conclusions. The lawsuit claims the Post acted carelessly by not acting on information it became aware of four days after it published its first article.

By January 23, the Post conceded that the @2020fight account that was largely responsible for the edited video going viral on social media may have been purchased from Shoutcart.com for that specific purpose.

With no investigation into the @2020fight account, the Post actively, negligently, and recklessly participated in making the 2020fight Video go viral on social media when on January 19 at 9:21 a.m., Post reporter Joe Heim re-posted the 2020fight Video.

The lawsuit says the Post recklessly published a piece on the incident on January 19th, four hours after the edited video went viral. Somehow this is defamatory because the Post "recklessly" did not act on information it didn't have (the extended video posted a day later) prior to publishing this article. Then the lawsuit wanders off to discuss the investigation of the incident by a firm hired by the Catholic school Sandmann attends, as though this should have some bearing on an article published prior to an investigation the Washington Post wasn't involved with.

When it comes to narrow down the alleged defamation, the lawsuit somehow gets even worse. It spends four paragraphs enumerating "false and defamatory gists" -- a legal concept usually offered as a defense, rather than an accusation. Then it accuses the Washington Post of defaming Sandmann by publishing statements made by other people to the Post reporter.

In its First Article, the Post published or republished the following false and defamatory statements:

(a) The headline “‘It was getting ugly’: Native American drummer speaks on the MAGA-hat wearing teens who surrounded him.”

(b) “In an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.”

(c) “Phillips, who was singing the American Indian Movement song of unity that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.”

(d) “A few people in the March for Life crowd began to chant ‘Build that wall, build that wall,’ he said.”

(e) “‘It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ Phillips recalled. ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.’”

(f) “‘It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,’ Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement.

(g) “Chase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.”

(h) “‘It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,’ he said. ‘We were wondering where their chaperones were. [Phillips] was really trying to defuse the situation.’”

(i) “Phillips, an Omaha tribe elder who also fought in the Vietnam war, has encountered anti-Native American sentiments before . . . .”

From there, it discusses about a second article by the Washington Post, alleging it was somehow defamatory for the Post to publish a statement from the Covington Diocese decrying the teen's behavior. It also says a third article from the Post was defamatory -- again listing only things other people said to the Post's reporter. Then there's more stuff about "defamatory gists." And on it goes for several more pages, highlighting each Post article about the subject while failing to point out any defamatory statements actually made by the Washington Post.

This is a garbage lawsuit. It makes zero credible defamation accusations, spending its entirety either stating its own opinions about the paper or attempting to hold it legally responsible for statements made by other people. It's not winnable. Its sole purpose appears to be to exist loudly, hoping to create a deterrent effect simply by banging about the place self-importantly. It will go nowhere, but it will do so as noisily as possible. If this is all Sandmann's parents wanted from their legal representation, they should have accepted the pro bono offers being made, rather than sink money into this ostentatious waste of time.

Filed Under: defamation, free speech, jeff bezos, lin wood, nick sandmann, protest, todd mcmurty
Companies: washington post

Justice Thomas Is Apparently Serious About Completely Upturning Over 50 Years Of 1st Amendment Law

from the opening-up-our-libel-laws dept

It appears that Supreme Court Justice Clarence Thomas has decided to drop quite a First Amendment bombshell this morning -- suggesting that over half of a century of "settled" First Amendment law might not be so settled.

But, first, back during the 2016 campaign, then candidate Donald Trump uttered his famous "big idea" to "open up" libel laws in response to his displeasure that some of the media was criticizing much of his usual nonsense. This was, quite clearly, an attack on the 1st Amendment -- and it was those strong 1st amendment protections for free speech that have actually helped protect Trump himself from multiple lawsuits.

However, when discussing Trump's original promise to "open up" libel laws, many people pointed out that there really wasn't very much he could do. The 1st Amendment is the 1st Amendment -- not something that Trump can easily change. And specific defamation laws are from each state, not the federal government (and must be bounded by what the 1st Amendment allows). We did note that there were some ways that Trump could create free speech problems, but it was generally agreed upon that it was unlikely to happen in the courts. In 2016, Ken "Popehat" White had a detailed post on how it was exceedingly unlikely that the courts would change the key aspects of 1st Amendment law, with a particular focus on New York Times v. Sullivan, which is the seminal 1964 Supreme Court ruling credited with creating a "re-birth of the 1st Amendment."

As Ken wrote in his piece, NYT v. Sullivan is so settled that there's basically no movement at all to change it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.¹ You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

The key bit of NYT v. Sullivan was to establish that there's a very high bar in defamation cases involving a "public figure." Specifically, the standard the Supreme Court established is that in such cases, a plaintiff need to show "actual malice" -- which doesn't just mean that the defendant really dislikes the plaintiff. The actual malice standard isn't actually about "actual malice," but rather that the speaker made the statements knowing they were false, or exercising "reckless disregard" for whether or not they were true. The Supreme Court established that this high bar was necessary to satisfy the First Amendment, and guarantee that no laws were made that infringed up on the right of free expression.

So, the bombshell this week was a concurrence by Justice Thomas in denying a petition to rehear a defamation case concerning Bill Cosby and one of his accusers. The specifics of the case revolved around whether or not the accuser qualified as a "public figure" and thus had to clear the higher bar as established by the NYT's case. The 1st Circuit had ruled in 2017 that McKee was a public figure. The cert petition tried to challenge that decision. The Supreme Court decided not to hear it, which isn't all that surprising. What was surprising is that Thomas decided to use this decision not to hear the case (with which he agreed) to assert something much more controversial: that NYT v. Sullivan was bad law and shouldn't bind the court:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

As Ken White had written in his piece, this is somewhat surprising -- bordering, but not quite, on chemtrails level nuttiness. Thomas goes on for pages explaining why he disagrees with the ruling in Sullivan, first arguing that because the standard itself is not in the Constitution, there's no Constitutional support for it:

But the Court also addressed “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Id., at 256. The Court took it upon itself “to define the proper accommodation between” two competing interests—“the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, 418 U. S., at 325 (majority opinion). It consulted a variety of materials to assist it in its analysis: “general proposition[s]” about the value of free speech and the inevitability of false statements, New York Times, 376 U. S., at 269– 272, and n. 13; judicial decisions involving criminal contempt and official immunity, id., at 272–273, 282–283; public responses to the Sedition Act of 1798, id., at 273– 277; comparisons of civil libel damages to criminal fines, id., at 277–278; policy arguments against “selfcensorship,” id., at 278–279; the “consensus of scholarly opinion,” id., at 280, n. 20; and state defamation laws, id., at 280–282. These materials led the Court to promulgate a “federal rule” that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279–280. Although the Court held that its newly minted actual-malice rule was “required by the First and Fourteenth Amendments,” id., at 283, it made no attempt to base that rule on the original understanding of those provisions.

That's a... somewhat bizarre version of Constitutional originalism, and would suggest that basically none of the standards the Supreme Court has established in its history have any merit. Yikes.

New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.”

Well, yeah. Because, by definition, libel and slander impact speech, and the 1st Amendment says that you can't pass laws that prohibit free expression. So, unless Thomas is actually arguing that all defamation law is unconstitutional (which would be an even more extreme position), then this argument makes no sense. But he's not arguing that at all. It goes on for pages, talking about how early in the US's history libel laws were super important -- especially in protecting the reputations of famous people:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

After talking about a bunch of highly questionable cases from a century or so before the NY Times decision, Thomas concludes with the claim that states are more than capable of "balancing" the rights of free expression with "reputational harms":

We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.

This is an ahistorical take on reality. Defamation laws were routinely used by the powerful to silence criticism. Indeed, that is still the case in many other countries that don't have a standard akin to the actual malice standard in the US. We routinely write about speech squelching cases in places like the UK and Australia. As the Atlantic's coverage of the 50th anniversary of the NYT v. Sullivan decision states:

If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.

The NYT v. Sullivan is a supremely important case in establishing the 1st Amendment as truly protecting free speech -- and specifically protecting the rights of anyone to criticize public officials. It is disappointing and somewhat shocking that any Supreme Court Justice is willing to even consider going back on that standard. Hopefully, the other 8 Justices retain their recognition of its importance.

Filed Under: 1st amendment, actual malice, bill cosby, clarence thomas, defamation, free speech, libel, mckee, nyt v sullivan

David Assman Invalidates Canadian Government's Reason For Refusing Him His Name-Based Vanity License Plate

from the the-assman-cometh dept

It's been a source of confusion for me over the past few years how there can possibly be so much conflict in the realm of vanity license plates. While I can understand the need for something in the way of rules when it comes to government-mandated plates, it's still the case that such plates are a form of expression and, given the government mandate, one would think the government would tread lightly when it comes to overly restrictive rules for them. And, yet, stories about agencies disallowing Star Trek references because ignorant people think they're racist, about police being unable to have a plate that reads "O1NK", and about governments somehow thinking IT-related terms are sexual abound.

At first glance, one man's request for a vanity plate that reads "ASSMAN" might appear to be outside of these types of cases. After all, even the vulgar among us might understand a government worker disapproving of such a request out of concern for the purity of all the other drivers out there. On the other hand, when the denial for an "ASSMAN" vanity plate leaves the Canadian government offices in an envelope addressed to David Assman, it seems we're right back in the territory of the prudishly absurd.

Assman first tried to put his name on a license plate in the 1990s. That application was rejected by SGI as “profanity.” His recent application was denied on the grounds that it was “offensive, suggestive or not in good taste.”

“I think they are too worried that people are going to have hurt feelings about something that is complete nonsense,” Assman told the National Post by direct message last week. “Even if it wasn’t my last name who is it going to hurt?”

This decades long struggle by David Assman to get the Canadian government to acknowledge that his own last name is not vulgar in the form of a license plate must surely have been frustrating. Why should Assman have to put up with this shit? Regardless, even if you would come down on the side of the government denying him his vanity plate so as to prevent his vulgarity of a surname from showing up on the back of his vehicle, Assman has other outcomes in mind.

David Assman is the hero we need, not the one we deserve. Yes, this story's final arc is Assman completely invalidating the reasoning behind the Canadian government denying him his vanity plate in the first place. In case you cannot see the picture, he had an auto body painter put his own last name on the back of his truck in letters that would be, oh I don't know, ten or so times the size that they would have been on the vanity plate itself.

And so we tip our hat to the Assman this day. And we remind bureaucracies everywhere that people should just be allowed their vanity plates.

Filed Under: canada, david assman, free speech, license plate

Federal Judge Thinks The Best Fix For An Accidentally Unsealed Court Doc Is Prior Restraint

from the welcome-to-America,-your-honor dept

The Chicago Sun-Times dropped a bombshell on city residents late last month with an article detailing the FBI's secret recordings of an Illinois politician's shady business dealings.

The FBI secretly recorded Illinois House Speaker Michael Madigan trying to get business for his private law firm from a developer brought to him by Ald. Danny Solis, who was weighing the developer’s request to build a hotel in Chinatown, according to a federal court affidavit obtained by the Chicago Sun-Times.

The affidavit makes clear for the first time that the federal investigation that has snared powerful Chicago Ald. Edward M. Burke extends beyond City Hall and into the Illinois statehouse, examining politicians’ longstanding practice of merging personal and political business.

The FBI's affidavit connected the conversational dots for those reading the court documents.

An FBI agent alleges in the 120-page affidavit: “I understand Solis to mean that by hiring Madigan’s private firm, [the developer] would ensure that Solis and Madigan would take official action benefitting [the developer] in their capacity as public officials.”

Normally, there's be no story here (meaning here at Techdirt) since this appears to be nothing more than the corruption we've come to expect from Illinois politicians. It's a fine tradition dating back to the city's founding, but hardly in our wheelhouse.

This would have stayed outside our wheelhouse if not for the judge presiding over this case. No one other than the judge and the involved parties were meant to see the details of these secret recordings. The details are the juiciest parts, though: the FBI got Alderman Solis to wear a wire by leveraging his personal life, which was apparently filled with "massage parlors and Viagra."

The affidavit submitted by the FBI was supposed to be filed under seal. A clerical error left it exposed and unsealed on the PACER docket for an unknown amount of time. That's how the Chicago Sun-Times got its hands on it. Greg Hinz at Chicago Business has more details -- this time coming from the judge himself.

None of that sat well with Magistrate Judge Young Kim, who court records indicate has been presiding over the Solis matter.

According to my sources, Kim re-closed the affidavit and ordered the Sun-Times not to print what was in it, presumably on grounds that premature publicity could undermine what appears to be an extremely wide-ranging federal probe into City Hall that has been underway for four years or longer.

Here's where we come in, along with the First Amendment. Judge Kim likely knows his prior restraint is unconstitutional. It couldn't have escaped him that this is not the proper response to accidentally unsealed court documents. Unfortunately, he's not the only judge who thinks the First Amendment doesn't apply to the end result of court clerical errors. But Kim had advance notice from the prosecution side.

Knowledgeable sources also say that Kim’s order came despite sentiment within the U.S. attorney's office here that a ban on publication, known as prior restraint, would be on shaky legal ground and likely inconsistent with past U.S. Supreme Court decisions in the famed Pentagon Papers case and others.

Kim did it anyway, resulting in the US Press Freedom Tracker taking notice of this unconstitutional blip on its radar. Judge Kim's order blows right past Supreme Court precedent and attempts to do damage to the First Amendment protections the Chicago Sun-Times enjoys.

Not that any of Kim's courtroom bluster matters... at least not at this point. The Chicago Sun-Times published its article anyway using the source document the court system failed to keep sealed. And now Chicagoans know yet another of their politicians engaged in questionable -- if not illegal -- business dealings. Readers are likely unsurprised, but even so, there's a strong public interest in political corruption, which should easily outweigh anything Judge Kim might try to summon in support of his free speech blindside hit. It's apparent the US attorney's office won't be backing him up, so he's going to have to go it alone if he's going to take a run at contempt of court hearings. Good luck with that.

Filed Under: corruption, fbi, free speech, illinois, michael madigan, prior restraint, sealed court documents, young kim
Companies: chicago sun times

Utter Bullshit: Reporter Maria Ressa Arrested Over Bogus Charges For Her Critical Reporting

from the free-speech-has-to-matter dept

We've written about reporter Maria Ressa, who started the successful news site The Rappler in the Philippines. Ressa, herself, is a force of nature, who has upset a lot of people with her incredibly detailed and thorough reporting. Last year, we wrote about how the Duterte government was trying to intimidate and silence her with bogus charges, claiming that because she had accepted grant money from US foundations, she was engaged in tax evasion.

Today things ramped up quite a bit with the National Bureau of Investigation (NBI) (the Filipino equivalent of the FBI) coming to arrest Ressa at her offices, claiming that she violated a "cyberlibel" law. Incredibly, the article that the government claims is libelous... was written four months before the law they claim it violated actually became law.

The Department of Justice (DOJ) recommended the filing in court of cyber libel charges against Ressa and former Rappler researcher Reynaldo Santos Jr over a story published in May 2012 – or 4 months before the law that they allegedly violated was enacted.

The case, filed by the DOJ, stemmed from a complaint by businessman Wilfredo Keng, who was identified in a Rappler article as the owner of the SUV that then-chief justice Renato Corona had used during the impeachment trial.

Keng complained not about his alleged ownership of the vehicle, but about the backgrounder on him as having alleged links to illegal drugs and human trafficking, based on intelligence reports.

When the officers came to arrest Ressa at her office, some of her colleagues tried to film the situation on their mobile phones, and the NBI agents tried to get them to stop:

In response to this Rappler has said it will not give in to the intimidation:

“We are not intimidated. No amount of legal cases, black propaganda, and lies can silence Filipino journalists who continue to hold the line. These legal acrobatics show how far the government will go to silence journalists, including the pettiness of forcing me to spend the night in jail.”

The statement further lays out why the charges are clearly bogus and trumped up:

A complaint was filed by businessman Wilfredo Keng 5 years after a story was published on May 29, 2012, or months before the cybercrime law was enacted. Our story said former chief justice Renato Corona used a vehicle registered under the name of Mr Keng, who, based on intelligence reports and previously published stories, had alleged links to illegal drugs and human trafficking. We called Mr Keng and got his side before the story was published.

The filing of the case is preposterous and baseless. No less than NBI Cybercrime Division chief Manuel Eduarte closed an investigation in February 2018 after finding no basis to proceed, given that the one-year prescriptive period had lapsed. Eight days later, however, the NBI revived the case, and filed it with the Department of Justice on the basis of a theory they call "continuous publication."

This is a dangerous precedent that puts anyone – not just the media – who publishes anything online perennially in danger of being charged with libel. It can be an effective tool of harassment and intimidation to silence critical reporting on the part of the media. No one is safe.

This is why in the US (and other countries) we have what's known as the single publication rule, in that the date of original publication is the date at which any statute of limitations clock starts ticking (mostly). Yet, it appears the Philippines is arguing for no single publication rule and that "continuous publication" means liability can last forever. Furthermore, even if this was libelous (which sounds questionable), shouldn't libel be a civil matter between two private parties, rather than involving the criminal justice system?

And, of course, remember, that the Philippines' Constitution has a close analogue of the 1st Amendment in the US (there it's their Section 4):

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

That would certainly suggest that the law being used to arrest Ressa is unconstitutional. Various journalism organizations are already condemning this arrest as a clear attempt at silencing Ressa and Rappler in their critical reporting of the Duterte government:

"The Philippine government's legal harassment of Rappler and Ressa has now reached a critical and alarming juncture," said Shawn Crispin, CPJ's senior Southeast Asia representative. "We call on Filipino authorities to immediately release Ressa, drop this spurious cyber libel charge, and cease and desist this campaign of intimidation aimed at silencing Rappler."

Filed Under: cyberlibel, defamation, free speech, libel, maria ressa, nbi, philippines, renato corona, rodrigo duterte, wilfredo keng
Companies: rappler

Google Caves On Russian Censorship

from the be-evil? dept

Late last year, we were among those disappointed by leaked news from Google that it was toying around with a censored search engine for China -- a country that the company had mostly left nearly a decade ago. After loud complaints both from people outside the company and many within, reports in late December said that the company had quietly halted efforts to build a censored Chinese search engine.

But now... the company may be dipping its toe in the evil pool again, as it has apparently agreed to cooperate with Russia's censors. This is a battle that's been going on for some time. Over the last few years, Russia has passed a number of internet censorship laws, and there have been lots of questions about how Google and other tech giants would respond. A year ago, we noted that Facebook/Instagram had decided to cave in and that ratcheted up the pressure on Google.

It should be noted that Russia has been on Google's case for a while, and the company had been resisting such pressure. Indeed, the company actually shut down its Russian office a few years back to try to protect itself (and its employees) from Russian legal threats.

But, apparently, something has changed:

The business news source Vedomosti is reporting that Google has struck a deal with Russian censors to continue operating in the country by deleting websites that are banned in Russia from its results. The government censorship agency Roskomnadzor maintains a registry of sites that may not be distributed on Russian territory, but Google is one of a few search engines that does not subscribe to that registry. However, the company regularly deletes links from its search results that Roskomnadzor has banned, sources within both Roskomnadzor and Google told Vedomosti.

The report notes that, previously, Roskomnadzor had just been fining Google for its failures, and the company had been simply paying the fines. Now, however, it will sign up to censor the official list of sites, which is large and constantly growing. Given what the company just went through with the whole China debacle, you would think the company would be more thoughtful about this kind of thing. This is an unfortunate decision.

Filed Under: censorship, roskomnadzor, russia, search results, site blocking
Companies: google

UK Cop Calls Up 74-Year-Old Woman To Ask Her To Stop Tweeting Mean Things

from the time-to-waste-and-money-to-burn dept

The policing of tweets continues in the UK. The literal policing of tweets.

Because there's apparently not enough people being stabbed on a daily basis, local law enforcement agencies have decided making house calls over reports of "hateful" tweeting is a worthwhile use of resources. This fairly recent law enforcement tradition dates back to at least 2014, but in recent weeks police have ramped up efforts to... well, it's unclear exactly what the endgame is.

Irish writer Graham Linehan was recently visited by a Scottish police officer over supposed harassment of a trans rights activist. There didn't appear to be any actual harassment. Instead, it appeared the alleged harassee wasn't satisfied with the Mute and Block options offered by Twitter, and decided to file a formal complaint about speech he didn't like.

The end result was a stupefying mix of force and futility. The officer asked Linehan to stop engaging with Adrian Harrop (the offended party). Linehan refused to do so. The officer left and Linehan got back on Twitter to talk about this bizarre waste of everyone's time.

More time is being wasted by UK law enforcement, this time in an attempt to persuade an elderly person she harbors some outdated ideas.

Margaret Nelson is a 74-year-old woman who lives in a village in Suffolk. On Monday morning she was woken by a telephone call. It was an officer from Suffolk police. The officer wanted to speak to Mrs Nelson about her Twitter account and her blog.

[...]

Among the statements she made on Twitter last month and which apparently concerned that police officer: ‘Gender is BS. Pass it on’.

Another:

‘Gender’s fashionable nonsense. Sex is real. I’ve no reason to feel ashamed of stating the truth. The bloody annoying ones are those who use words like ‘cis’ or ‘terf’ and other BS, and relegate biological women to a ‘subset’. Sorry you believe the mythology.’

The only way any public official should have felt "concerned" is if they know her personally and frequently attend social events where she's both present and vocal. That's a very low level of concern, one that could be mitigated by steering clear of these social functions. It shouldn't be "concerning" enough for law enforcement to get involved. No one should be getting phone calls from cops because they said something stupid on the internet.

This phone call was especially pointless. The officer asked Nelson to stop writing things other people found offensive. Nelson asked the officer if free speech was still something the officer considered important. The officer said she thought free speech was important and Nelson said that's exactly why she wouldn't stop writing things that mildly upset other people.

The oddest aspect of this futile interaction was the department's response on Twitter -- one that makes it appear as though officers have voluntarily deputized themselves on behalf of Twitter.

Hi Margaret, we had a number of people contact us on social media about the comments made online. A follow-up call was made for no other reason than to raise awareness of the complaints. Kind regards, Web Team.

No law enforcement agency needs to be wasting its time acting as a complaint box for social media. If Nelson's content violated the terms of use, Twitter (and her blog host) are free to do something about it. If readers don't like what they're reading, they can simply stop reading Nelson's posts. Twitter also allows users to block or mute other users. Reading blogs you don't like isn't mandatory. All anyone has to do is not navigate to sites containing content they dislike.

Instead, an unknown number of internet users chose to make this a police matter. We could blame this entirely on them if it wasn't for the fact that multiple UK police agencies have made it clear they'll investigate impolite speech if someone's willing to waste their own time filing a complaint. In the end, they can't do anything more than ask someone to stop making other people angry. But that's all they can do, so it becomes a waste of taxpayers' money on top of everything else, which should make people angrier than whatever happened to piss them off as it rolled through their timeline.

Filed Under: free speech, margaret nelson, police, tweeting, uk