Shiva Ayyadurai Drops His Potentially Interesting Lawsuit About Massachusetts Officials Complaining To Twitter About Tweets

from the too-bad dept

Just last week we had Prof. Genevieve Lakier on our podcast to talk about the 1st Amendment and the concept of "jawboning": government officials using informal pressure and wink-wink-nudge-nudge efforts to pressure companies into doing things that they are allowed to do as private companies, but which the government is forbidden from doing under the 1st Amendment. The key court case on this is the Bantam Books Supreme Court ruling in 1963. But there are questions about how this applies in a social media era, when you have politicians on both sides of the aisle leaning on social media companies to remove or punish speech they dislike.

Last fall, we had highlighted what we thought was potentially an interesting and important case about this involving Shiva Ayyadurai. As regular readers of Techdirt know, Ayyadurai sued us years ago for our articles highlighting the lack of evidence for his claims to be the inventor of email (claims that don't stand up to much scrutiny when viewed against the historical record). That lawsuit went on for two and a half years and was incredibly draining and frustrating.

You might think, then, that we'd automatically side against Ayyadurai in his latest legal fight, but as we noted, he actually raised a really important 1st Amendment issue. The case originally was about Massachusetts government officials alerting Twitter to tweets from Ayyadurai that they claimed were election misinformation. Those tweets were extraordinarily misleading, and in the lead-up to the 2020 election, you can understand why election officials were tremendously concerned about election mis- and disinformation online. And, various government agencies and social media websites had set up processes to share information regarding such misinformation and disinformation.

But, most mis- and disinformation is still protected by the 1st Amendment. So there's a really interesting question about where is the line between simply alerting private companies of such content -- i.e., using the bully pulpit of government to highlight something a private actor can fix -- and an unconstitutional move by the government to silence constitutionally protected speech? This case had the potential to explore that very issue -- and it appeared that the judge saw that point. Unfortunately, much of the rest of the case went off the rails entirely.

I won't go through all of the many twists and turns the case took (there were many), but a quick summary of a few of the key points. In response to a request for a temporary restraining order from reporting his account, Massachusetts agreed that it would no longer report tweets to Twitter until after the election, thus rendering the TRO request moot. As the case went on, the judge wondered why Twitter was not included as a party, if Ayyadurai was alleging state action (I actually think the judge is wrong on this -- while there are some cases where the private actors should become parties, to me the focus should always be on the government actors who allegedly threatened or pressured the private actors -- otherwise, it's a kind of victim-blaming). Ayyadurai (representing himself) then moved to add Twitter as a party.

Somewhere in this process, Twitter shut down Ayyadurai's account entirely. Ayyadurai insisted that this was because of its close relationship with government officials, and that because it happened soon after he had mentioned a Massachusetts official, it was somehow evidence that they were working hand in hand with the government. Ayyadurai then tried to file various amended complaints that included RICO/conspiracy claims and a variety of other claims. He found some widely available public documents that were produced to better educate both social media companies and election officials about how to respond to election disinformation, and claimed it was proof of the conspiracy and a manual to suppress protected speech. At a hearing in May, ostensibly about adding Twitter as a defendant, the judge strongly suggested that Ayyadurai hire lawyers for the next phase of the case, and even recommended a lawyer (Howard Cooper from Todd & Weld). The judge also hinted very strongly that the RICO claims had no chance and were likely to be dismissed, but he was interested in exploring whether or not the individual Massachusetts officials who were sued were protected under qualified immunity.

Soon after that, Ayyadurai notified the court that Todd & Weld would be representing him, along with... Charles Harder's law firm (Harder, of course, represented him in his case against us) -- though, he also asked that it be what's known as hybrid representation, where he would be allowed to speak on his own behalf in the court, rather than just through a lawyer (the defendants from Massachusetts strongly opposed this request). Over the following few weeks, lawyers from Todd & Weld made their official appearances before the court, though as far as I can tell, no one from Harder LLP did so (this becomes more important shortly). There was then some more, um, somewhat abnormal back-and-forth regarding Ayyadurai's proposed agenda for a scheduling conference, in which both Massachusetts and Twitter disputed Ayyadurai's characterization of their discussions.

The judge eventually set out a schedule, asking Ayyadurai to file a revised complaint by July 15. On July 14, the attorneys from Todd & Weld, who had only just appeared a month earlier, filed a motion to withdraw as counsel, noting that Ayyadurai had "terminated" their representation on the 13th. Also on the 14th, lawyer Timothy Cornell (who was also Ayyadurai's lawyer in the case against us, and had asked to file an amicus brief in this case) filed an appearance on behalf of Ayyadurai... and then on the 15th (the day the filing was due!) asked for an extra six weeks, noting that he needed time to get up to speed on the case.

The defendants in the case quite understandably called foul on all of this, hinting in their filings that part of the reason Ayyadurai fired his lawyers was that they had agreed to remove the claims against various defendants in their personal capacities:

In providing this final chance to amend the pleadings the Court observed that claims against the individual defendants in their personal capacities were bereft of legal support and encouraged Plaintiff to dismiss these claims. Indeed, Plaintiff’s recently fired counsel represented to the Defendants this week that they intended to jettison all money damages claims against the individuals sued in their personal capacities. Now Plaintiff’s new attorney is apparently refusing to abide by this agreement and seeking an extension to reevaluate the case.

The judge, Mark Wolf, who has a reputation as being a fairly "no nonsense" judge, responded quickly, and you might say he was not pleased. He refused to let the Todd & Weld lawyers withdraw, pointed out how ridiculous all of this was and how it was delaying justice and messing up the court's schedule. And then noted:

The court is also considering whether to impose sanctions on Dr. Ayyadurai personally, or to hold him in civil or criminal contempt for his failure to comply with the June 16, 2021 Order. Rule 16(f) of the Federal Rules of Civil Procedure states that "on motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)" if a party "fails to obey a scheduling or other pretrial order." Fed. R. Civ. Pro. 16. Rule 37(b)(2) provides a range of sanctions available to the court, including "dismissing the action or proceeding in whole or in part." Fed. R. Civ. Pro. 37(b)(2)(A)(v).

The court has repeatedly admonished plaintiff that he is required to comply with both the Local Rules for the District of Massachusetts and the Federal Rules of Civil Procedure. See Oct. 29, 2020 Order (Dkt. No. 17) ("'pro se status does not free a litigant in a civil case of the obligation to comply with the procedural rules.' Nor does it permit a litigant to disobey court orders") (citing Rivera v. Riley, 209 F.3d 24, 27-28 & n.2 (1st Cir. 2000)); Feb. 19, 2021 Order (Dkt. No. 63) ("Despite being admonished by the court concerning the need to comply with the Federal Rules of Civil Procedure and Local Rules, plaintiff did not file a memorandum of law in support of his Emergency Motion as required by Local Rule 7.1(b)(1) and allegedly did not confer with defendants concerning his motion for a subpoena to Twitter (Dkt. No. 56). Any future submissions that do not comply with the applicable Rules may be summarily denied"); see of Oct. 30, 2020 Tr. (Dkt. No. 24) at 95:5-13 ("you're going to have to read the rules and follow them").

Despite these warnings, plaintiff chose to terminate Todd & Weld and retain new counsel the day before he was required to file both his revised Second Amended Complaint and his supporting memorandum of law. Plaintiff was undoubtedly aware that replacing counsel just before these submissions were due would make it impossible for him to comply with the deadline set in the June 16, 2021 Order. Plaintiff has provided "no good reason why [he] could not have worked with [his] original counsel until a replacement was identified" and an orderly transition occurred, instead of retaining Mr. Cornell at the eleventh hour and requesting a six week extension.2 Hooper-Haas v. Ziegler Holdings, LLC, 690 F.3d 34, 39 (1st Cir. 2012).

Plaintiff's repeated failures to obey court orders may justify a sanction, including the possible dismissal of this case.

The court then gave Ayyadurai and his lawyers (both the new ones and the "fired" ones) a week to file a revised second amended complaint, asked for a sealed affidavit from Ayyadurai explaining why he fired Todd & Weld, and then set a hearing for the first week of August. Ayyadurai argued the court should not sanction him, and noted that a key reason he fired the lawyers the judge had recommended was that they wanted to drop the RICO claims (which the judge had already made clear were not going to fly) and he wanted to include them:

Here, the Plaintiff was unaware until the final week that the filings were due that his disagreements with counsel were to such an extent that he was left with the stark choice of either accepting his counsel’s work product or finding new counsel.... Since he was determined not to allow the RICO claims to drop and to oppose qualified immunity, he felt he was left with little choice. Although he was aware that, if he dismissed his counsel, he would not be able to meet the Court’s deadline for these filings, he believed his action was in the best interest of the case and that the looming missed deadline could be easily cured by a grant of an extension. He felt that an extension, in turn, would be largely harmless to the court and the Defendants.

He also filed the proposed revised second amended complaint, which (of course) continues to argue laughable RICO claims, and includes a silly conspiracy theory chart. He also filed a Memorandum of Law in support of his claims. Somewhat notably, while that proposed complaint and memorandum of law were officially submitted via his "new" lawyer Timothy Cornell's electronic filing account, it was "signed" by Ayyadurai himself, and not Cornell.

That is... not how this is supposed to work. The defendants called out the lack of Cornell's signature and even noted that they asked him to add his signature and he refused to do so:

Ayyadurai then filed two documents over his own signature and without the signature of counsel: a Revised Second Amended Complaint (Dkt. No. 167) and a Memorandum of Law in Support of Plaintiff’s Claims (Dkt. No. 166). Cornell electronically filed these documents for Ayyadurai, but they were signed only by Ayyadurai. Defendants’ counsel immediately contacted Cornell on July 23, 2021 to ask him to either withdraw the filings or append his signature to them. In a telephone conference on July 26, 2021, Cornell declined to do so.

Then, incredibly, things got even weirder. On August 3rd, the day before the hearing about all of this, the Judge filed quite an incredible order, noting that Cornell had filed, under seal, an affidavit claiming that the Memorandum of Law had been written by another law firm.

In an ex parte affidavit filed under seal (Docket No. 169), plaintiff's counsel Timothy Cornell reported the plaintiff's Memorandum of Law (Docket No. 166) was "written by a law firm in California that did not put its name on the memorandum."

The judge then ordered Ayyadurai to file an affidavit prior to the hearing identifying who wrote the document, and ordered that whoever it was who wrote it should appear at the hearing and be prepared to testify. Ayyadurai responded, claiming it was all a misunderstanding and he alone wrote the Memorandum of Law, saying he only had unnamed others review it and his own lawyer, Cornell, "misunderstood this fact."

Judge Wolf was, well, not happy. He ordered Ayyadurai to do better:

The court has received plaintiff Shiva Ayyadurai's August 3, 2021 affidavit (Dkt. No. 181) in response to the August 3, 2021 Order (Dkt. No. 178). In it he contradcits his attorney Timothy Cornell's sworn statement that the Memorandum of Law filed on July 22, 2021 (Dkt. No. 166) "was written by a law firm in California that did not put its name on the memorandum."...

In view of the foregoing, it is hereby ORDERED that:

1. By 11:30am on August 4, 2021, plaintiff shall file an affidavit identifying the "others" who reviewed the July 22, 2021 Memorandum of Law; and
2. Cause those "others" to attend the 2:00 p.m. August 4, 2021 hearing by videoconference, and to be prepared to testify if necessary.

Finally, Ayyadurai (again, filing via Cornell's account, but signing only his own name) identified three people who reviewed the document, including one lawyer: Dilan Esper, who is a rather experienced attorney and partner at... Harder LLP, the law firm Ayyadurai had previously said would be entering the case but never actually did.

Despite the demands for him to appear, Esper never showed up at the hearing on the 4th, with the judge repeatedly asking where he was. At some point, apparently, Esper emailed the court clerk to note he would not be appearing. The hearing went on for a while, with the judge being noticeably upset about all of this. He noted that the contested filing appeared different, both in style and in content, than previous filings by Ayyadurai. Defendants' lawyers highlighted stylistic differences including a different font and caption. The judge spent a bunch of time exploring possible monetary sanctions and asked the lawyers for Massachusetts for estimates of how much they would bill hourly and how much time they had spent on the case. For what it's worth, the lawyers insisted they didn't care about monetary sanctions, noting that they were employees of the government and salaried, so hourly fees were meaningless, and that the sanction they desired was simply the dismissal of the case. In the end, the judge agreed to dismiss most of the claims, but noted that he was actually still interested in the 11th Amendment questions regarding qualified immunity, along with the 1st Amendment questions regarding government suppression of political speech, and told Ayyadurai and Cornell to file a new complaint just about that issue. He also "reserved judgment" on the question of sanctions for Ayyadurai.

And... that meant that there might have been an eventual actual examination of the 1st Amendment claims regarding the limits of jawboning!

But, apparently, it is not to be. A day after filing an astoundingly sloppy and weird amended complaint, Ayyadurai filed a stipulation of dismissal, agreed to by all parties, dropping all claims in the case:

NOTICE IS GIVEN that, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiff Dr. Shiva Ayyadurai now hereby voluntarily dismisses with prejudice all claims in this suit. In addition, all parties voluntarily withdraw all pending motions in this matter. There is no further action by any party on this matter, no questions in controversy remain among the parties, and each party will bear its own costs and fees.

It's not a surprise that the defendants agreed to this. In the hearing, they had made it clear they didn't care much about fees or sanctions beyond dismissal. So this voluntary dismissal gets them all that they want.

Of course, that doesn't mean the judge has to go along with it. In theory, the judge could still sanction Ayyadurai for his actions in this case, though he may be happy enough to have the whole thing off his plate that he lets it go without sanctions.

In the end, though, I'm somewhat frustrated and disappointed in this end result, because I still believe that buried deep in the core of Ayyadurai's complaint there was a really important issue to explore about the borders of where and how a government official can lean on private companies to take down protected speech. As we discussed in our podcast, where is the line between compelling private actors to take down speech and merely persuading them? It's a very blurry line, unfortunately, and a good case and a good ruling exploring that issue is actually tremendously important for the 1st Amendment.

Unfortunately, this was not that case.

Filed Under: 1st amendment, content moderation, disinformation, jawboning, massachusetts, misinformation, qualified immunity, rico, shiva ayyadurai
Companies: twitter

President Of France Sues Citizen Over Billboard Comparing Macron To Hitler

from the is-this-really-your-first-time,-Emmanuel? dept

Some countries still have laws that forbid insulting political leaders. But you kind of assume enforcement of these laws will be left to the Erdogans and Dutertes of the world.

Apparently not. In France, where free speech protections are mostly known for their exceptions, President Emmanuel Macron has apparently been so insulted that it's resulted in the government taking legal action against a citizen armed with nothing more than an overused comparison and a handful of billboards. (h/t Sarah McLaughlin)

French President Emmanuel Macron is suing a billboard owner who depicted him as Adolf Hitler to protest COVID-19 restrictions.

Michel-Ange Flori, who owns about 400 billboards in the southern département of the Var, wrote on Twitter on Wednesday: "I have just learnt that I will be heard at the Toulon police station tomorrow following a complaint by the president of the Republic."

"So in Macronia you can make fun of the prophet's ass, that's satire, but to make the president look like a dictator is blasphemy," he added.

The offending poster portrays Macron in the uniform of Nazi leader Hitler, with a small moustache, a lock on his forehead and the acronym of the presidential movement LREM turned into a swastika. A message reads: "Obey, get vaccinated."

Insulting the president is no longer a criminal offense in France. That law was amended in 2013 after the European Court of Human Rights condemned the law in a ruling. But the president can still take action against alleged defamation, like any regular citizen. But, unlike regular citizens, the president's complaints are handled by government prosecutors and apparently involve local law enforcement.

To be in power is to invite criticism. The correct response is to take it, not prosecute it. But the French government held onto its criminalization of insulting political leaders for more than a century and only amended it after it was forced to by a court decision.

But this was perhaps to be expected from the French government. After all, it could barely be bothered to do anything more than indulge in a photo op in the wake of the murders of contributors to satirical publication Charlie Hebdo by Islamic extremists. And it followed up this blatant and literal attack on free speech by arresting a local comedian for his anti-Semitic statements.

The explanation by the government's legal team doesn't make anything better. It simply says Macron was offended and wanted to sue.

Jean Ennochi, a lawyer for Macron, said the legal complaint was filed for Macron in a personal capacity "because of the offensive nature of the comparison of the President of the Republic with Adolf Hitler".

A representative of Macron's party said it had filed a separate complaint alleging insult and incitement of hatred.

Obviously, being compared to Hitler isn't flattering. But it's the rare political leader who makes it through their tenure in office without being compared to Hitler at some point. Obviously, there's only one Hitler and thousands of politicians who've done nothing more harmful than anger some citizens by being on the "wrong side," or supporting the "wrong" policies, or merely holding a position of power. A ham-fisted comparison doesn't "incite" hatred. It only affirms the hatred some French citizens already feel towards Macron. It definitely shouldn't result in lawsuits, law enforcement involvement, and the deployment of government prosecutors.

Filed Under: adolf hitler, billboards, emmanuel macron, france, free speech, hate speech, lawsuits, michel-ange flori, political speech

Top German Court Says Facebook Must Inform Users About Deleting Their Posts Or Suspending Their Account, Explain Why, And Allow Them To Respond

from the hating-the-hate-speech-hate dept

We've just written about Germany's constitutional court grappling with the issue of whether government users of zero-days for surveillance have a responsibility to report the flaws they use to the relevant developers. Another senior court in the country has been pondering an even thornier question that is occupying judges and lawmakers around the world: how should social media police so-called "hate speech" on their services in a way that respects fundamental rights on all sides?

Germany's Federal Court of Justice issued its judgment regarding two similar cases (pointed out by Matthias C. Kettemann on Twitter). Both involved posts that Facebook removed because it said they went against the social network's community standards governing hate speech. In addition, Facebook temporarily blocked the accounts of the users who wrote the posts. When the lower German courts refused to overturn Facebook's moves completely, the users appealed to the Federal Court of Justice, which not only ordered Facebook to reactivate the two accounts, but also told it to refrain from blocking the re-posting of the deleted comments. The court ruled that Facebook's rules governing the removal of posts and the blocking of user accounts were "invalid", because "they unreasonably disadvantage the users of the network contrary to the requirements of good faith." The court went on to explain its reasoning (translation by DeepL of original in German):

In this case, the conflicting fundamental rights of the parties -- on the side of the users the freedom of expression from [Article 5 (1) sentence 1 of Germany's Basic Law], on the side of the defendant [Facebook] above all the freedom to exercise a profession from [Article 12 (1) sentence 1 of Germany's Basic Law] -- must be considered and balanced according to the principle of practical concordance in such a way that they become as effective as possible for all parties. This balancing shows that the defendant is in principle entitled to require the users of its network to comply with certain communication standards that go beyond the requirements of criminal law (e.g. insult, defamation or incitement of the people). It may reserve the right to remove posts and block the user account concerned in the event of a breach of the communication standards. However, in order to strike a balance between the conflicting fundamental rights in a manner that is in line with the interests of the parties, and thus to maintain reasonableness within the meaning of [Section 307 (1) sentence 1 of the Civil Code of Germany], it is necessary that the defendant undertakes in its terms and conditions to inform the user concerned about the removal of a post at least subsequently and about an intended blocking of his or her user account in advance, to inform him or her of the reason for this and to grant him or her an opportunity to respond, followed by a new decision.

Germany's Federal Court of Justice is trying to balance two conflicting rights -- freedom of speech, and freedom to exercise a profession. Its solution is to require companies like Facebook to inform users about the removal of a post -- at least retrospectively -- to tell them in advance about the blocking of an account, explain why, and to allow users to respond so that the decision can be reconsidered. That's a new, general approach that can be applied to a wide range of online services. However, as Matthias C. Kettemann pointed out on Twitter, it leaves important questions unanswered, including the issue of spam accounts, and of account suspensions, rather than deletions. Given their importance, we can probably expect future judgments to tackle these points in due course.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: account suspension, content moderation, deletion, free speech, germany, hate speech, notice
Companies: facebook

Superior Court Dumps BS Charges Brought Against New Jersey Homeowner For Her 'Fuck Biden' Signs

from the if-not-superior,-at-least-an-improvement-over-the-last-court dept

Last week, a New Jersey municipal court judge sided with the town of Roselle Park, New Jersey, and its decision to fine a homeowner for "obscene" signs she had in her yard. The signs weren't obscene in any legal sense of the word -- not even under the ordinance the town claimed she had violated. When the homeowner refused to back down, the town started finding her $250/day.

The homeowner, Patricia Dilascio, tried to fight back, challenging the citation in municipal court. Unfortunately for her, the presiding judge misread the law and completely ignored the First Amendment to back the town government and its inexplicable decision to prosecute a handful of "Fuck Biden" signs. According to the town's mayor, "there's no place for profanity by a school and school children" -- a statement that can only be made by someone who's never overhead the things said by school kids when they think no adults are listening.

The judge, however, should have been able to read the law and follow a whole bunch of precedent from the nation's top court -- precedent that says the First Amendment firmly protects political speech, even when it includes the word "fuck." In the view of this court, a balance needed to be struck between protecting free speech and sparing hypothetical parents from having to explain the f-word to their hypothetical children.

With everyone with any power being stupid about this, the ACLU stepped in to take the case. And that seems to have prompted immediate results.

The Superior Court, Law Division today vacated charges against a Roselle Park resident, represented by the ACLU-NJ, who was cited for violating the town’s obscenity ordinance after displaying signs that read “Fuck Biden” on her property.  

The Superior Court, unfortunately, did not serve up an opinion strongly protecting free speech rights or excoriating the judge who had mishandled the original charges. But it did move fast once the town dismissed the ticket and agreed not to try to collect any fines.

This likely wouldn't have happened without the ACLU stepping in to help even out the balance of power. When it was just a town beating up on a resident for political speech, the mayor, Joseph Signorello, could not have been more sure of his rightness, calling the judge's blown call a "win for decency." But with the case gaining national attention -- and not a single person who knows anything about the First Amendment willing to side with him -- the only way to slow the bleeding was to abandon ship before it became the foundation for a civil rights lawsuit the town was certain to lose.

But even after agreeing to drop the charges, the mayor seems compelled to have the last word. And it's just as moronic as his opening salvo.

The mayor, Joseph Signorello III, called it a “moral loss” for the borough.

“Those signs are offensive, and were I a neighbor, I would be offended,” said Mr. Signorello, a Democrat.

“You cannot legislate decency,” he added, “and I think that’s a sad reality.”

Ohhhh… but you thought you could! I mean, that was the point of this misuse and apparently deliberate misreading of the town's obscenity statute. And somehow your town was blessed with the assistance of a judge just as concerned about children and just as dismissive of civil liberties as you are! Sure, it's too bad you're both wrong, but you guys had a thing going for a bit. Try to enjoy your memories of the calm before the shitstorm, when everything was full of promise and possibilities.

Nice, isn't it?

Well… knock it off. Those days are over. Stop living in the past. Welcome back to America, where criticism of government officials is pretty much the poster boy for the First Amendment. There are better things to do with your town's time and money than waste it on protecting hypothetical children from the nonexistent threat of posted profanities.

Filed Under: 1st amendment, free speech, new jersey, patricia dilascio, political speech, roselle park, yard signs
Companies: aclu

Appeals Court Denies Immunity To University Officials Who Apparently Banned A Christian Student Group Just Because They Didn't Like It

from the if-you-can't-do-policy-right,-maybe-don't-do-it-at-all dept

The administrators of the University of Iowa have just learned a hard (and possibly expensive) lesson about free speech. Of course, as a publicly-funded university, it will be the taxpayers that foot the bill, but hopefully this recent Eighth Circuit Appeals Court decision [PDF] will head off future extractions of tax dollars from people who didn't violate anyone's rights.

This decision affirms the lower court's determination that the University of Iowa's decision to make a Chiristian student group align itself with the university's ideals was a violation of the group's First Amendment rights. Here's Rox Laird with the background for Courthouse News Service.

The Iowa City-based state university revoked the status of InterVarsity Christian Fellowship as a registered student organization, saying the group violated the university’s human rights policy by requiring officers to affirm the organization’s statement of Christian faith, including an opposition to same-sex relationships.

A federal judge in Des Moines ruled in 2019 that the revocation violated InterVarsity’s First Amendment rights. The judge also ruled that individual administrators named in the suit were not entitled to qualified immunity protecting them from having to pay damages to plaintiffs out of their own pockets.

Laird refers to the existence of a mythical government entity called "own pockets," but it's excusable. The denial of qualified immunity means administrators are personally responsible. But years of protective legislation and lucrative (for insurers) insurance contracts ensure these legislators won't actually be writing out checks from their personal accounts.

The administrators appealed the decision. But only part of it. Relying on the appellate level's penchant for bypassing determinations of rights violations in favor of finding reasons to give government (or government-funded) employees a pass, the administrators only appealed the stripping of qualified immunity. They did not appeal the lower court's determination that rights were violated. This basically means the administrators admitted to violating rights, but still hoped the next level of the court system would forgive them for doing so.

The administrators were wrong. The Eighth Circuit Court of Appeals notes that the university imposes all sorts of restrictions on Registered Student Organizations (RSOs). Some of these are unconstitutional, given the university's position as a publicly-funded entity.

And, as the court points out, the university has not been consistent in its application of these unconstitutional restrictions, nor has it required student groups to be accepting of all applicants, despite its own RSO policies.

The University has also permitted religious groups to require members or leaders to affirm certain beliefs. In 2003, it allowed the Christian Legal Society to require its members to sign “a statement of faith” affirming Christian beliefs.It also approved the constitutions of other religious groups like the Imam Mahdi Organization, which requires leaders “to refrain from major sins” and requires both leaders and voting members to “[b]e Muslim, Shiea.” The University never thought these groups violated the Human Rights Policy.

But they obviously did. Here's the University's Human Rights Policy:

[I]n no aspect of [the University’s] programs shall there be differences in the treatment of persons because of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual, and that equal opportunity and access to facilities shall be available to all.

On top of this inconsistency, there's the university's all-too-sudden determination the InterVarsity Christian Fellowship didn't conform with policy. When you alter enforcement after a quarter-century of non-interference, you tend to raise litigious eyebrows.

Over twenty-five years, Iowa had no problem with InterVarsity. But in June 2018, Andrew Kutcher charged that InterVarsity’s constitution violated the Human Rights Policy. InterVarsity’s leader, Katrina Schrock, responded that the constitution did not prevent anyone from joining if they did not subscribe to the group’s faith, but that only its leaders were required to affirm their statement of faith. Kutcher countered that “[h]aving a restriction on leadership related to religious beliefs is contradictory to [the Human Rights Policy].”

This power move failed, resulting in the university booting InterVarsity from the RSO rolls, which then resulted in this lawsuit.

The Appeals Court first affirms (even though it didn't need to) the rights violation. Inconsistent application of policies affecting speech tend to work out poorly for public entities. The University of Iowa is no exception. And it appears to have taken the lower court's ruling to mean it could continue to apply its policy inconsistently to oust certain student groups.

The district court found that the defendants likely violated BLinC’s constitutional rights and ordered the University to apply the Human Rights Policy equally to all RSOs. But instead of doing that, the University started a compliance review that prioritized religious organizations. That review led to InterVarsity’s deregistration, along with other religious groups. The University’s fervor dissipated, however, once they finished with religious RSOs. Sororities and fraternities got exemptions from the Human Rights Policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs.

Fuck right off with that, says the Eighth Circuit.

We are hard-pressed to find a clearer example of viewpoint discrimination.

Shots fired.

On appeal, the University and individual defendants do not try to argue their actions survive strict scrutiny. That is wise. Of course, the University has a compelling interest in preventing discrimination. But it served that compelling interest by picking and choosing what kind of discrimination was okay. Basically, some RSOs at the University of Iowa may discriminate in selecting their leaders and members, but others, mostly religious, may not. If the University honestly wanted a campus free of discrimination, it could have adopted an “all-comers” policy like the one in Martinez.

The First Amendment has clearly indicated on the Constitutional doll where the university violated it.

The University and individual defendants’ selective application of the Human Rights Policy against InterVarsity was viewpoint discrimination in violation of the First Amendment. It cannot survive strict scrutiny.

And it's a violation of clearly-established precedent. The administrators are on their own.

What the University did here was clearly unconstitutional. It targeted religious groups for differential treatment under the Human Rights Policy—while carving out exemptions and ignoring other violative groups with missions they presumably supported. The University and individual defendants turned a blind eye to decades of First Amendment jurisprudence or they proceeded full speed ahead knowing they were violating the law. Either way, qualified immunity provides no safe haven.

The only explanation is that administrators truly believed no one would sue over the inconsistent application of First Amendment-bothering policies. Like a lot of public entities and officials, they decided the questionable reward was worth taking the tangible risk. They were wrong. The university has crapped out on consecutive levels of the federal court system, and it will now be forced to treat all RSOs as equal, rather than give preferred groups a pass on policy matters.

Filed Under: 1st amendment, 8th circuit, free speech
Companies: university of iowa

Judge Tosses Candace Owens's Litigious Attempt To Turn Facebook Fact-Checking Into Defamation

from the have-you-met-the-First-Amendment? dept

Last year, Candace Owens (former Turning Point USA's communications director and current "conservative" author/commentator) sued both USA Today and Lead Stories LLC over fact-checking services they provide to Facebook. Owens claimed the labelling of her COVID-related Facebook posts as misinformation caused her to lose ad revenue and hampered her ability to promote her new book.

Here's the background on the case from ABC News (which chose not to publish the court document, so here's a link to Justia, which did):

Lead Stories published an article in April 2020 fact-checking a Facebook post in which Owens claimed that the way U.S. government officials counted COVID-19 deaths overstated the scope and dangers of the pandemic. The Lead Stories article labeled Owens’ post with the terms “Hoax Alert” and “False” and prompted Facebook to place a false information warning label on Owens’ post.

Similarly, USA Today published a fact check later that month concluding that a post in which Owens questioned the relationship between the counting of COVID-19 deaths and flu deaths in early 2020 contained false information. Owens cited Centers for Disease Control and Prevention reports and argued sarcastically in her post that the number of flu deaths had decreased drastically in early 2020.

As a result of the USA Today article, Facebook put a false information warning label on Owens’ second post.

This suit was filed in a Delaware state court, apparently using Facebook's position as a Delaware corporation -- along with the ability of internet communications to travel interstate -- to keep it from being moved to federal court and a jurisdiction that would have made more sense.

Not that it matters. Owens has lost this lawsuit. About half of the decision [PDF] is given over to the court explaining why it feels it has jurisdiction over a Delaware corporation that wasn't actually named as a defendant, as well as the Colorado-based Lead Stories.

Plaintiffs have not provided me with a sufficient basis on which I may exercise general personal jurisdiction over Lead Stories under Delaware law. Plaintiffs have, however, provided me with a sufficient basis on which I may exercise specific personal jurisdiction over Lead Stories under Delaware law. The nature and quality of the commercial activity that Lead Stories conducted over the Internet mitigate in favor of specific personal jurisdiction. Although Lead Stories did not directly transact business or perform work or services in Delaware, or contract to provide “services or things” in Delaware, it contracted with Facebook to supply fact-checking services and stories which were disseminated by Facebook in Delaware in such a manner as to allegedly cause tortious injury in Delaware, which could reasonably have been foreseen by Lead Stories.

With this out of the way, the court moves on to discuss the merits of Owens's claims. Owens alleged tortious interference and defamation, with an unfair competition claim thrown in for good measure. These allegations are bogus, says the court, starting with the supposed defamation:

Plaintiffs allege in the Amended Complaint that the following three statements made in the Lead Stories Article are defamatory and false and were made with actual malice:

(1)The [false] claims [about the COVID-19 death counting method] originated in a post . . . published on Facebook by Candace Owens on March 29, 2020.

(2)[The First Facebook Post] is being shared to suggest that medical officials are – in Owens’ words – “trying desperately to get the numbers to justify this pandemic response.” This comment is an attempt to downplay the severity of a global infectious disease that has killed more than 42,000 people as of March 31, 2020.

(3)There are several inaccuracies in [the First Facebook Post].

Owens felt being fact-checked was defamatory. The court says, nope, it was just Lead Stories saying things Owens didn't want to hear and certainly didn't want transmitted publicly to people reading her content.

I find no facts alleged in the Amended Complaint supporting Plaintiffs’ claim that statement (1) is defamatory or false. As Lead Stories correctly points out in its brief, Plaintiffs altered the statement and omitted relevant context. The statement in the original Lead Stories Article, attached to the Amended Complaint as Exhibit A, merely reads that “[t]he claims originated in a post (archived here) published on Facebook by Candace Owens on March 29, 2020.” In their Amended Complaint, Plaintiffs admit that Owens is the author of the claims published on Owens’ First Facebook Post. This statement does not convey any facts that are untrue or capable of defamatory meaning as it does not injure Owens’ reputation in any sense.

And so it goes for the rest of the defamation claims. The conclusions made and published by the fact-checking services were substantially true, and certainly more true than the claims Owens made on Facebook. And labelling her posts as "False" or "Hoax" wasn't defamatory either.

Plaintiffs do not demonstrate that the word “False” is an untrue statement under the reasonable conceivability standard. Plaintiffs argue that because the First Facebook Post relied on an opinion from its own expert, Dr. Lee, and Lead Stories relied on an opinion from its own expert, Dr. Ailen, Lead Stories was not able to fact-check the First Facebook Post. This is not accurate. Opinions may carry underlying assertions of facts. Dr. Lee and Dr. Ailen may well have different opinions on whether COVID-19 should be counted as cause of death. However, as discussed above, their underlying factual assertions are not inconsistent. More importantly, in contrast to Plaintiffs’ allegations, Dr. Lee’s article does not support, much less confirm, the accuracy of Owens’ First Facebook Post. Therefore, Plaintiffs fail to demonstrate under the reasonable conceivability standard that Lead Stories made a false statement when it superimposed the word “False” over Owens’ Facebook Post image.

[...]

It is not reasonably conceivable that readers who read the Lead Stories’ Article would have understood “Hoax Alert” to mean that Plaintiffs were intentionally spreading a lie. Instead, the readers would have understood “Hoax Alert” as a rhetorical hyperbole implying that the Owens’ Post carries inaccurate information and that the readers should proceed cautiously when reading the post.

The First Amendment also protects the defendants against Owens's tortious interference claims.

A tortious interference claim cannot survive if the claim is premised solely on statements that are protected by the First Amendment because the exercise of constitutionally protected speech cannot be an “improper” or “wrongful” action. Because Candace Owens is a public figure, the First Amendment protects Defendants’ statements unless Plaintiffs’ Amended Complaint supports reasonably conceivable inferences that (1) Defendants’ articles contain false statements, and (2) Defendants made the statements with actual malice. Defendants’ articles are protected by the First Amendment because Plaintiffs fail to state that both Defendants’ articles contain false statements of fact made with actual malice under the reasonable conceivability standard.

And if that claim fails, so does the common law claim for unfair competition. This claim cannot survive if it only implicates activities protected by the First Amendment.

The case is dismissed. Owens, of course, is free to appeal this or take the same claims to a federal court. But unless she's got an endless amount of money to blow on losing lawsuits, she's probably better off being angry -- rather than litigious -- about it. As the court noted at the outset of its opinion, the advancement of technology, bringing with it new arenas for political debate, raises some novel questions for courts to consider. But at the end of the day, it's the law that matters.

Today’s world of technological wizardry presents endless opportunities for conflict and battle like Kilkenny cats. Social influencers can sway opinions of millions of people controlling politics and money. Those with substantial control over social media like Facebook struggle to control fact from fiction. The case before me presents one battle in the social media wars. It also presents a real-life struggle affecting reputations, the ability to earn substantial income, and the ability to fact-check.

The political aspects of this case are manifest but must be ignored in favor of application of the law.

Moving these complaints elsewhere won't change the law and it won't change how the First Amendment works. Substantially true claims can't be defamation. And protected expression -- like fact-checking and moderation efforts -- can't form the basis for interference claims. Owens should just take the loss and move on.

Filed Under: candace owens, content moderation, covid misinformation, defamation, fact checking, health misinformation, misinformation
Companies: facebook, lead stories, usa today

Streisand Effect Still Works: Vancouver Roofing Company Hit With Negative Reviews After Suing Over A Negative Review

from the how-do-you-not-expect-this? dept

Last week, KGW8 had an incredible story about how a couple in Vancouver, Washington were sued after leaving a 1-star review for Executive Roof Services (ERS). The defendants in the lawsuit, Autumn Knepper and Adam Marsh, were (reasonably!) annoyed about the treatment they received from the firm after their landlord had asked ERS to check out the roof to the house, after the couple found it leaking. The experience they had with ERS was not great:

Knepper said she called the office and talked with the receptionist, who she said was rude from the time she answered the phone.

“She refused to give me any information. She said I would have to get it from the landlord. I asked to speak with the manager and she laughed at me. She told me I was verbally abusing her and that she was the office manager. She hung up on me,” said Knepper.

Marsh said he called ERS and had a similar bad experience with the woman who answered the phone.

“She was just super rude, told me that she was office manager and there was no one else I could talk to and hung up on me,” said Marsh.

So they each wrote a 1-star review on Google explaining what happened. Apparently, the owner of ERS, Michael Mecham, didn't take kindly to all of this. Again, according to KGW8:

“He told me that he knew where I lived. He said he had forensics guy and that he would gladly spend a hundred thousand dollars suing me,” said Knepper.

Knepper said the owner texted her and said the review needed to be taken down before “more damages are done.”

Knepper said she called the police, which led to an officer asking Mecham to no longer contact the couple.

“We thought that was the end of it,” said Knepper.

But, instead, they were sued for defamation (the lawsuit was filed in Clark County, and it appears that the documents for the lawsuit are not readily available online or we'd include them here). The lawyer for ERS, David Bowser... um... doesn't seem to know what he's talking about. He first told a reporter from KGW that it wasn't about the review... and then seemed to immediately admit it was about the review:

Bowser said the couple did not hire ERS, the landlord did. Because of that he said they weren’t entitled to the information they requested -- a project report and timeline -- because they were not customers or clients of ERS. This is part of our exchange when we asked Bowser about the suit:

Cristin Severance, KGW: "Whether they're paying customers or not, shouldn't they be entitled to write about their experience? They said the receptionist was rude."

David Bowser, attorney: "It depends why they did that. If they were doing it merely to express their opinion, that's what other customers have done in the past. I don't have an issue with that. ERS doesn't have an issue with that. But when you cross the line and you use this forum to cause intentional harm to a family-owned business and hurt them and their employees and their business, you've crossed the line."

Severance: "How did they intentionally harm ERS by writing about a rude receptionist?"

Bowser: "They intentionally harmed ERS by posting one-star reviews for the purpose of getting a report they weren't entitled to."

That's... not how any of this works. At all. They have every right to write a review about their experience. Bowser seems particularly clueless about SLAPP suits. Washington just passed a new anti-SLAPP law, though technically it didn't go into effect until this weekend. But Bowser should maybe learn what that means:

Bowser argues this is not a SLAPP filing.

Bowser: “That is not what a SLAPP lawsuit is, a SLAPP is a motion. This is a lawsuit. The lawsuit asserts claims for defamation and for intentional interference with business expectancies,” said Bowser.

Wut? The "L" in SLAPP stands for lawsuit, guy. And this is a classic SLAPP. It's a lawsuit over obviously protected speech, and was clearly filed to try to silence Knepper and Marsh. When the reporter asked Bowser how is this not trying to silence someone, Bowser responded that this was "not something that they legitimately had a basis to give an opinion on." And, again, this is not how anything works. You get to give your opinion on anything you want. I get to give my opinion on this lawsuit -- which is one of the SLAPPiest SLAPP suits I've seen in a long time. You don't get to unilaterally declare that they can't give their opinion.

But, of course, even more incredible is that, here, the lawyer for ERS has now admitted that it was their opinion. And, I mean, you don't need to be even a terrible lawyer to know that opinions are not defamatory.

Either way, it's not difficult to see what happened next. KGW8 is reporting that the owner of ERS says he had to take down his website after receiving a ton of 1-star reviews. Not that anyone should condone leaving made up 1-star reviews, but how the hell did neither he nor his foolish lawyer realize how this was going to end up?

Filed Under: anti-slapp, david bowser, defamation, free speech, opinions, reviews, slapp, vancouver, washington
Companies: executive roof services

Senator Klobuchar Proposes An Unconstitutional Law That Would Kill Legions Of People If Trump Were Still President

from the self-evident-unconstitutionality dept

This bill is so bad it was worth a second post.

There is a reason that the Constitution contains the provision, "Congress shall make no law […] abridging the freedom of speech." And this new bill proposed by Senator Klobuchar (who really should know better) gets at the heart of it. Because what her bill would do is make a law that, at its core, pointedly interferes with freedom of speech by allowing the government to penalize certain expression. And there is absolutely no reason to believe that its choices for which speech to favor will be sound and healthy ones for society. In fact, given the performance of the previous presidential administration, there's plenty of reason to believe the result would be the exact opposite.

The mechanics of this interference are fairly straight forward. Her bill, "The Health Misinformation Act of 2021," would condition Section 230's platform protection to apply only to platforms that moderate user content as the government has decreed they should moderate it. The constitutional problems with this scheme should thus be readily apparent: First, it directly violates platforms' First Amendment rights to moderate user content as they see fit by effectively forcing them to moderate content as the government has decided they should, lest they risk the loss of a critical statutory protection they otherwise would have had. Secondly, the bill inherently allows the government to put its thumb on the scale of deciding which points of view are the allowed ones and which are the ones subject to legal penalty, which obviates freedom of speech since some ideas are obviously no longer effectively free to be expressed if they can attract a censorial government-induced penalty.

The Klobuchar bill would like to pretend that the means somehow justify the ends. The government certainly has a legitimate interest in keeping the population alive and healthy, so it's not an inherently corrupt goal she's trying to further with this bill. She just wants to suppress medical misinformation that has been prolonging the pandemic.

But there's nothing about the bill that confines it to such benevolent purpose. There can't be, because that's not how government power works, which is why we have the First Amendment because we always need to be able to speak out against the government when it gets things wrong.

And we know it gets things wrong. It has gotten things wrong even just with respect to this particular health crisis that the bill is supposedly limited to. At best it made innocent mistakes, like when it discouraged masks early on in the pandemic. But then there were people in the highest offices of government touting hydroxychloroquine snake oil and discouraging social distancing. There are still people in government discouraging vaccines. How can we possibly have a law where the government gets to decide what speech is favored or not when the government itself has, even within the very same health crisis that this bill is supposedly limited to, been so conspicuously unable to reliably make those choices competently? This crisis has already outlasted one administration, and while this one might like to keep people alive with credible, scientific information, the last one did not, and who knows what might be in store with the next one. But this bill would empower a Trump Administration as much as a Biden Administration to take away the right and ability of the public to speak out against its mistakes, no matter how deadly they may be. Because a government that can force platforms to only allow, for example, pro-vaccine messages on its systems can just as easily disallow them as well. And if it does, people will die.

Furthermore, if a bill like this could be allowed for this crisis, it could be allowed for any. The government can always articulate some reason for why free expression needs to be curtailed. And throughout history it has regularly tried. A law like this, if it could get on the books, would signal it to keep trying on every policy issue that can possibly bear on our lives and the security and stability of our country – which is effectively all of them. Because today it's health misinformation the government is unhappy about. Tomorrow it could be elections. Policing. Terrorism. The draft. Even potentially something as banal as tax policy. There's always a reason the government can cite for why society should not be exposed to ideas out-of-step with what it has decided are the better ones.

But it's the people's job to decide, not the government's. Per the constitution, it's not allowed to be the government's job. The Founders got the government out of the business of choosing which views could be permitted which could be punished with its "make no law" admonishment because there is no way for the government to pick the winners and losers in the marketplace of ideas and not risk serious damage to discourse, and with it the democracy that depends on it.

And everyone in government needs to remember that.

Filed Under: 1st amendment, amy klobuchar, ben ray lujan, content moderation, free speech, health misinformation, misinformation, section 230

Appeals Court Affirms State Trooper Who Responded To An F-Bomb With An Arrest Owes $15k In Legal Fees

from the I-told-you-once-and-I-told-you-twice/But-you-never-listen-to-my-advice dept

By now, there's enough case law in place that law enforcement officers should definitely know it's a violation of rights to arrest someone for momentarily offending them. Even without the case law, these officers know it's not okay to bust people for flipping them off or yelling expletives in their general direction. That's why those that do, buttress their rights violations with absurd claims that doing these things "disturbs the peace" or violates any other "contempt of cop" law that can be deliberately misread to criminalize hurting a cop's feelings.

But cops persist in engaging in retaliatory acts that target protected speech. And the most protected speech of all is criticism of the government, even if it's nothing more than a fleeting expletive or the bird being delivered by the passenger of a passing car.

This refusal to let bygones be bygones when the moving vehicle has moved on is going to cost taxpayers some money. A case already decided by the Eighth Circuit Appeals Court in favor of the citizen setting up Arkansas State Trooper Lagarian Cross with the F-bomb now has a much more expensive price tag.

The original 2019 decision refused to grant Trooper Cross qualified immunity. It also awarded the swear Eric Thurairajah nominal damages: one US dollar. Here's a brief rundown of the facts behind the first visit to the Appeals Court, as well as setting the stage for the Eighth Circuit's second pass.

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell "f**k you!" out of his car window. The van's occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell. Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas's disorderly conduct law. Trooper Cross believed the shout constituted "unreasonable or excessive noise" under the law. Ark. Code Ann. § 5-71-207(a)(2).

Thurairajah spent several hours in jail but then was released and all charges against him were dropped. He filed a § 1983 lawsuit against Trooper Cross alleging the trooper violated his First Amendment right to be free from retaliation and his Fourth Amendment right to be free from unreasonable seizure. Trooper Cross moved for summary judgment on the basis of qualified immunity. The district court denied qualified immunity on both claims after concluding Trooper Cross's arrest violated Thurairajah's clearly established constitutional rights.

"Clearly established." No qualified immunity. The trooper's appeal netted him nothing but an affirmation of both the lower court's decision and the clear establishment of the right he had violated.

The second pass by the appeals court doesn't bother affirming anything that hasn't already been said twice. But it does help Trooper Cross dig himself an even more expensive hole with his inability to accept his loss gracefully. From the decision [PDF]:

The court sua sponte entered an order in limine precluding Thurairajah from presenting a punitive-damages argument to the jury. At trial, the jury returned a verdict finding that Trooper Cross’s actions were not the proximate cause of Thurairajah’s damages and awarded him nothing. The district court subsequently awarded nominal damages of $1.00 to Thurairajah. Thurairajah moved for a new trial, alleging that defense counsel acted inappropriately and that the district court should not have admitted evidence of a collateral source at trial. The district court denied the motion. Thurairajah moved for attorney’s fees, and the district court awarded attorney’s fees of $15,100.00.

Trooper Cross appealed this decision. He needn't have bothered. The fees award is affirmed, meaning whoever's indemnifying the state trooper will be paying $15,000 in legal fees to the plaintiff.

And the concurrence says the Eighth Circuit may have misread state law to give the trooper a pass on the plaintiff's state law claims. According to Arkansas law, no immunity may be awarded if the officer's violation of someone's rights is "malicious." The Eighth Circuit says nothing on the record supports the claim Trooper Cross's arrest was a "conscious violation of the law." The concurrence says that take is wrong. There's plenty on the record suggesting otherwise.

Thurairajah described the arrest as “hostile,” “violent,” and “personal.” He testified that Trooper Cross yelled at him to get out of the car, walked towards him “fast,” and asked him if he “thought that s**t was cute.” Thurairajah also testified that Trooper Cross was “aggressively moving [him] around” during the arrest, was “very aggressive through all the searches [of him],” and “was obviously very angry.” At one point, Trooper Cross told Thurairajah, “You can’t talk to cops like that; you can’t yell F-you to a cop.” And at the jail later, Thurairajah heard Trooper Cross tell someone, “This kid said ‘F**k you’ to a cop; so I thought I would bring him in.” Viewing these facts in Thurairajah’s favor, a jury could reasonably conclude that Trooper Cross arrested Thurairajah not because he believed Thurairajah engaged in disorderly conduct, but because he was angered by the profanity Thurairajah directed at him. And given that it was clearly established at the time that “[c]riticism of law enforcement officers, even with profanity, is protected speech,” Thurairajah v. City of Fort Smith, 925 F.3d 979, 985 (8th Cir. 2019) (first citing City of Houston v. Hill, 482 U.S. 451, 461 (1987); and then citing Hoyland v. McMenomy, 869 F.3d 644 (8th Cir. 2017)), a jury could conclude that Trooper Cross consciously violated the law or arrested Thurairajah “without just cause or excuse, [and] with an intent to inflict injury,” Fuqua, 20 S.W.3d at 391 (quoting Malice, Black’s Law Dictionary (6th ed. 1990)).

But that's the concurrence and Trooper Cross is lucky to escape only $15k lighter in the (collective, taxpayer-funded) wallet.

Almost everywhere in this country it's clearly established that expletives and middle fingers are protected speech, even when they target police officers. Every officer that engages in a retaliatory arrest is only creating more precedent that separates them from their dearly beloved qualified immunity. Smart cops don't blow judicial goodwill on foul-mouthed randos. But there appears to be more than enough dumb cops willing to indulge their worst impulses, ensuring an unfortunately steady stream of increasingly redundant federal court decisions.

Filed Under: arkansas, free speech, lagarian cross, police, retaliation

Senator Steve Daines Decides To Spit On The 1st Amendment Again: Wants To Ban Moderation Of Politicians

from the politicians-aren't-a-protected-class-steve dept

I'm beginning to think that Montana Senator Steve Daines really, really doesn't like the 1st Amendment. Instead, he likes to wrap himself in a faux American flag as he pretends to be patriotic, while attempting to stamp out the rights the 1st Amendment provides to Americans. Last week, we wrote about his attempt to amend the Constitution (specifically, chipping away at the 1st Amendment), to make flag burning illegal.

This week, he decided to just spit on the 1st Amendment itself and introduce yet another unconstitutional social media moderation bill that would amend Section 230. Called the "Preserving Political Speech Online Act," the bill does a few different things, but the key one seems to be... to make politicians like himself a special protected class. Because, Senators like himself, worth over $30 million, clearly are an oppressed class.

There's some stuff about how if you take political advertisements from some candidates you have to take them from all candidates. But the really sketchy stuff is in how it modifies Section 230. It would change Section (c)(2) -- the part of Section 230 that is rarely relied upon, regarding "good faith" blocking of content -- such that the "otherwise objectionable" bit is deleted, and replaced with "threatening or promoting illegal activity." It would also remove the line that sites are protected for blocking material "whether or not such material is constitutionally protected."

Of course, this misunderstands the nature of both Section 230 (and how (c)(1) already protects most moderation) and the 1st Amendment, which already protects most content moderation editorial choices as well. But, then Daines has to take it a step further and make absolutely sure his bill is blatantly unconstitutional. Because it also adds in a prohibition on certain types of moderation. It says you can no longer moderate "political speech." Apparently Daines wants to make sure all Nazis are protected when they promote fascism. His bill would add in this bit of unconstitutional garbage:

PROHIBITION OF BAD FAITH BLOCKING AND SCREENING.—

‘‘(i) IN GENERAL.—For purposes of subparagraph (A)(i), it shall not be considered good faith for a provider of an interactive computer service to block, censor, or screen material on the grounds of race, color, religion, sex, national origin, or political affiliation or speech

Now, race, color, religion, sex, and national origin are already protected classes. Political affiliation is not. Nor should it be. And, flat out saying that you're regulating speech here should have raised all of the 1st Amendment alarm bells possible. But it did not. Because this is not a serious attempt at serious policy making from a serious person. This is grandstand culture warrioring from a silly politician with nothing better to do than rile up an ignorant, silly base.

Amusingly, there's an exemption on that stuff for a website that is "dedicated to a specific issue, policy, belief, or viewpoint." So... if you set up a site specifically for Nazis, you can now ban people who don't support fascism. But the webhost hosting the Nazi focused site, which is open generally to the public, cannot ban the Nazi website. Is that really what Daines wants?

And, left unsaid so far, is that all of this is based on a total myth that anyone is being moderated for their political viewpoints. They are not. People are being moderated for violating policies such as by spreading mis- and disinformation, harassing others, trolling others, and other such general mayhem. No one is being moderated for supporting any standard political viewpoints. It's a myth that fools like Steve Daines embrace because to admit the truth would be to admit that their most vocal supporters are ignorant rubes and assholes.

Filed Under: 1st amendment, flag burning, free speech, political speech, politicians, protected class, section 230, steve daines