UK Cops Have Decided Impolite Online Speech Is Worth A Visit From An Officer

from the waste-of-time,-money,-and-oxygen dept

If you're not a resident of the UK, thank the First Amendment for not turning Twitter fights into police action. The UK's anti-hate speech laws have been extended to cover merely impolite speech -- at least according to UK law enforcement agencies who say ridiculous things like this. [h/t Amy Alkon]

In September, the official South Yorkshire Police account tweeted, “In addition to reporting hate crime, please report non-crime hate incidents, which can include things like offensive or insulting comments, online, in person or in writing. Hate will not be tolerated in South Yorkshire. Report it and put a stop to it.”

So, that's where things are at in the UK. That has led to cops showing up at people's doors to discuss online incivility. It's a heckler's veto with the weight of the UK government behind it -- something that can be abused to silence critics of people who can't handle criticism.

In this case, it was Irish comedy writer Graham Linehan being visited by the Norwich Police Department on a Sunday morning. He was apparently reported by outspoken trans rights activist Adrian Harrop. Linehan had posted tweets criticizing Harrop's televised debate with a woman who had paid for a billboard depicting the dictionary's definition of the word "woman," which bothered Harrop so much he complained and got that taken down as well.

Harrop was the reason Linehan was talking to police officers about tweets that didn't even violate the Twitter Rules. He had merely suggested Harrop's steamrolling of the billboard buyer during a televised debate might have been "male privilege." Another tweet alleged Harrop had threatened women and doxxed them for not being friendly enough to his cause. This is the tweet Harrop admits bothered him so much he needed to call the police. This is the disturbing, but ultimately useless, outcome of Harrop's decision.

After explaining to Linehan why he was there, the police officer—whom Linehan says was polite and friendly—asked Linehan if he would stop engaging with Harrop. Linehan told him he had no intention of stopping, the officer left, and Linehan immediately tweeted about what had just happened. The whole episode, he says, took about 15 minutes, and the police never told him which tweet Harrop found so offensive.

The country's laws say police can do this. So, naturally, they are doing this, even though it appears to be a massive waste of resources. This one ended rather quickly, with no violence or threats emanating from those sent to restore the internet's civility. But not every interaction will end this way. Some may end in criminal charges. Some may end with deployments of force. The UK government might think complaints like these will be handled civilly by public servants with the power to deploy deadly force, but that's a big assumption when the underlying "crime" is incivility. Confusion and/or hostility from people being accosted by law enforcement for being a bit too extreme online is probably a normal reaction. Police officers tend not to handle either of these emotions very well.

And there's this, which is the Norwich PD's official response to talking to a bathrobe-clad Linehan on a Sunday morning about tweets that wouldn't even ruffle Twitter's TOS feathers:

“Whilst we recognise that there is Freedom of Speech in the UK, it is important that the use of Social Media respects diversity and takes into consideration the feelings of others.”

You can't recognize free speech while still insisting everyone has to be nice to everyone else while online. You can hope that's what will happen, but you can't demand this of the general population. Unless you're in the UK, in which case you can, because you don't really recognize free speech and should probably remove that phrase from the government's collective vocabulary.

Filed Under: free speech, graham linehan, hate crime, hate speech, impolite speech, uk

New Hampshire Sued Over Criminal Defamation Law Abused To Arrest Law Enforcement Critic

from the if-I-had-a-hammer,-I'd-swing-at-the-public dept

Criminal defamation laws are stupid. But they're more than stupid: they're harmful. Plenty of entire countries still have them. But those countries don't have a First Amendment. With the First Amendment in place, it makes little sense to criminalize speech that can be handled through civil litigation. Nevertheless, these outdated laws are still on the books. In some cases, courts have already found them unconstitutional, but legislators seem unwilling to remove laws that are only ever abused by the government.

Due to this combination of laziness and self-interest, half the country still allows the government to arrest people for engaging in alleged defamation. One of those 25 states is New Hampshire, where the ACLU is now working to have the law ruled unconstitutional.

The case stems from the arrest of New Hampshire resident Robert Frese. Frese was hauled in by Exeter cops for calling the Exeter police chief "corrupt" and saying that he had "covered up" for dirty Exeter cops. The arrest of Frese for criticizing Exeter law enforcement did nothing to undermine either of his claims. If anything, it just made Exeter cops look dirtier and Police Chief William Shupe look more corrupt.

The criminal defamation charges ended up being dropped by the prosecutor, who found the charge wasn't worth pursuing. That ended this criminal prosecution under the stupid state law, but it didn't get rid the stupid state law that allowed Police Chief Shupe to retaliate against Frese in the first place.

That's where the ACLU comes in. Suing on behalf of Frese (and New Hampshire residents in general), the ACLU points out in its lawsuit [PDF] that criminal defamation laws are mainly used by government officials to shut down criticism or otherwise punish members of the public.

Nationally, criminal defamation charges are disproportionately filed against people who criticize public officials or government employees, especially law enforcement officers. One study identified 23 criminal defamation prosecutions or threatened prosecutions for the period from 1990-2002, 12 of which were deemed “political,” and 20 of which involved public figures or issues of public controversy. George C. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. L. & Pol’y 433, 467 (2004) (citing Russell Hickey, A Compendium of U.S. Criminal Libel Prosecutions: 1990-2002, Libel Defense Resource Center Bull., Mar. 27, 2002, at 97)). Another study, focusing on Wisconsin, found that 39 percent of criminal defamation prosecutions involved either public officeholders or government employees, including numerous charges of sexual misconduct by law enforcement and probation officers. David Pritchard, Rethinking Criminal Libel: An Empirical Study, 14 Comm. L. & Pol’y 303, 327– 33 (2009).

More specific examples can be found at the ACLU's website:

The editor and publisher of a small newspaper in Kansas were convicted of criminal defamation after the paper published an article suggesting that the mayor lived in another county and was therefore ineligible for public office. A Massachusetts woman was convicted of criminal defamation in New Hampshire after she claimed that a coffee shop’s employees spit in police officers’ coffee. And a Kansas man was charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem…

Keeping an obviously-unconstitutional law on the books gives government more hammers to deploy against pesky nails who won't keep their heads down. Citizens -- who rarely have the power to remove laws from the books -- continue to be the victims of bad lawmaking and the bad lawmakers who benefit from them.

Filed Under: 1st amendment, criminal defamation, criminal defamation law, defamation, free speech, new hampshire
Companies: aclu

Dangerous Court Ruling Says Colleges May Be Required To Block Access To Certain Websites

from the free-speech? dept

Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it's also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.

The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE's Samantha Harris explains first the background of the case:

The case, Feminist Majority Foundation v. University of Mary Washington, stems from a series of events that roiled UMW’s campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate’s decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW’s men’s rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW’s response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education’s Office for Civil Rights and then, ultimately, a federal lawsuit.

The lawsuit claims that UMW discriminated against the plaintiffs, in violation of Title IX, by responding with deliberate indifference to their claims of peer harassment, and by allowing UMW students to retaliate against the plaintiffs for filing an OCR complaint. The suit also alleges that former UMW president Richard Hurley retaliated against the plaintiffs by publicly defending the university against their allegations of discrimination.

The lower court dismissed the case, but here the 4th Circuit brings back a large component of it in a very troubling manner. Basically, by saying that since the University provided internet access to sites where harassing content could be found (on the third party app Yik Yak), the University was potentially liable:

The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University’s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students....

Furthermore, to the extent the sexual harassment was communicated through UMW’s wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ah, there's that copyright creep situation again. It's annoying when the average clueless joe says something along the lines of "well, if you can kick people offline for copyright, why not x..." but having a Federal Appeals Court Judge say it is really frustrating.

But think about what the court is saying here. Because this happened via the university's network (even on an app totally unrelated and out of the control of the university), the university can still be blamed for not blocking it. That's... crazy. That means that a university would need to proactively police the entire internet to stop anyone from saying anything harassing -- and if they come across anything or are told of anything, they'd be required to block access to that site or app entirely for all students. How is that reasonable?

The court also rejects the fact that the university had no way of figuring out who posted the "offending Yaks." Yik Yak (which went out of business last year) was always entirely anonymous. But the court doesn't seem to care:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.

The dissenting opinion in the ruling clearly sees the problematic impact of all of this:

Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The University should not hesitate to seek further review.

The case is far from over (and FIRE also notes that there's a separate issue of whether or not the content was even harassing in the first place, that hasn't even been considered yet). But the implications here are huge and really damaging.

Filed Under: 4th circuit, blocking, censorship, harassment, title ix, websites
Companies: university of mary washington, yik yak

Politician Who Tried To Hijack Critic's Blog Via Trademark Applications Agrees To Never Pull This Bullshit Again

from the shove-the-shame-you-don't-have-into-a-ziploc-bag-and-GTFO-of-office-thx dept

In one of the more blatant attempts at censorship we've witnessed, a Minnesota politician tried to trademark the name of a politically-focused blog that often criticized her. Tax board member Carol Becker tried to take the name "Wedge LIVE!" away from its owner, John Edwards, who had been using the name for years to cover local politics. Becker first claimed she thought of the name herself, which she thought would be perfect for her yet-unrealized podcast covering… local politics.

After receiving a bit of heat from Tony Webster, John Edwards, and Edward's supporters, Becker finally admitted she was attempting to take the name away from her critic, who had built his unregistered brand over the past several years. After more backlash, she decided to withdraw her trademark applications but warned she would try again in six months if Edwards didn't register them first.

Four months later, it appears Edwards has prevailed. His post at Wedge LIVE! notes he has dropped his lawsuit against Becker seeking an injunction blocking her from filing for Wedge Live-related trademarks. Becker has agreed to drop her censorial pursuit of the name "Wedge LIVE," bringing an end to this ridiculous and particularly inept attempt to silence a critic.

The legal effort to defend Wedge LIVE from Carol Becker has ended in victory. In a settlement reached late Monday, and fully executed yesterday, Becker has acknowledged my ownership of the name “Wedge LIVE.” Additionally, Becker has agreed that she will “never assert any claim to these marks in the future.”

Perhaps this debacle will lead Becker to exit the public sector. Becker attempted to use the federal government's IP protections to undermine a critic -- one she also baselessly accused of being funded by "dark money" and called a tax fraud. She also denied being aware of Wedge LIVE!'s existence when first confronted by journalists, only belatedly admitting she knew exactly what she was doing when she filed the disingenuous trademark applications. She's proven she can't really be trusted to handle even the small part of government she's staked out.

Filed Under: 1st amendment, carol becker, censorship, free speech, john edwards, minnesota, trademark, wedge live

Why Is Congress Trying To Pass An Obviously Unconstitutional Bill That Would Criminalize Boycotts Of Israel?

from the don't-be-ridiculous dept

As we've noted in the past on articles discussing this topic, I recognize that people have very, very, very strong views on both Israel and the whole "BDS" movement, and (trust me) you're not going to convince anyone about the rightness or wrongness of those views in our comments. However, even if you support the Israeli government fully, and think the BDS movement is a sham, hopefully you can still agree that an American law criminalizing supporting the BDS movement is blatantly unconstitutional.

It is true, if horrifying, that a bunch of states have passed such laws, all of which are quite clearly unconstitutional as well. Challenges to the state laws in Kansas and Arizona have already been (easily) successful. There are other legal challenges against the other laws, and they will almost certainly be tossed out as well.

The impact of these laws is absolutely ridiculous as well, even barring Houston residents from receiving hurricane relief if they didn't sign a pledge promising not to boycott Israel. That's so plainly a First Amendment violation, it's amazing that so many states have followed suit. And it's depressing that Congress is looking to do the same:

Earlier versions of the Israel Anti-Boycott Act would have made it a crime — possibly even subject to jail time — for American companies to participate in political boycotts aimed at Israel and its settlements in the occupied Palestinian territories when those boycotts were called for by international governmental organizations like the United Nations. The same went for boycotts targeting any country that is “friendly to the United States” if the boycott was not sanctioned by the United States.

Last week, the ACLU saw an updated version being considered for inclusion in the spending bill (though this text is not publicly available). While Hill offices claim the First Amendment concerns have been resolved, and potential jail time has indeed been eliminated as a possible punishment, the bill actually does nothing to cure its free speech problems. Furthermore, knowingly violating the bill could result in criminal financial penalties of up to $1 million. Were this legislation to pass, federal officials would have a new weapon at their disposal to chill and suppress speech that they found objectionable or politically unpopular.

Boycotts are clearly a freedom of expression issue. The entire point of these kinds of boycotts are to express your views on something happening in the world. To say that it's illegal to support a boycott is crazy. And it's even crazier that the US would pass such a law banning the boycott of a foreign country. This is made even crazier by the fact that it's quite obviously legal to call for a boycott of a state within the US. The Intercept's recent article highlights the insanity of this situation using NY Governor Andrew Cuomo:

One of the first states to impose such repressive restrictions on free expression was New York. In 2016, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel. “If you boycott Israel, New York State will boycott you,” Cuomo proudly tweeted, referring to a Washington Post op-ed he wrote that touted that threat in its headline.

As The Intercept reported at the time, Cuomo’s order “requires that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott. That government list is then posted publicly, and the burden falls on [the accused boycotters] to prove to the state that they do not, in fact, support such a boycott.”

[....]

What made Cuomo’s censorship directive particularly stunning was that, just two months prior to issuing this decree, he ordered New York state agencies to boycott North Carolina in protest of that state’s anti-LGBT law. Two years earlier, Cuomo banned New York state employees from all non-essential travel to Indiana to boycott that state’s enactment of an anti-LGBT law.

So, according to Cuomo, you must boycott North Carolina and Indiana, but it's a crime to boycott Israel. That's... messed up.

Again, even if you think that the BDS movement is really anti-Semitic, you should at least be able to understand the serious First Amendment problems with any such law. And the idea that Congress might try to slip something through during the lameduck session before the new Congress starts suggests even they know how ridiculous such a law would be.

Filed Under: 1st amendment, bds, boycotts, congress, free speech, israel, protests, states

FCC's O'Rielly Keeps Claiming, With Zero Evidence, That Community Broadband Is An 'Ominous' Threat To Free Speech

from the misdirection dept

So back in October, we noted how FCC Commissioner Mike O'Rielly attended an event where he falsely claimed that towns and cities that decide to build their own broadband networks (usually due to market failure) were somehow engaged in an "ominous" assault on free speech. The only "evidence" O'Rielly provided was that community ISPs include language in their terms of service preventing users from being hateful shits online, the same exact language you'll find in the TOS' from any number of private ISPs, from Comcast to AT&T.

There's absolutely no evidence that any of the 750 towns and cities that have tinkered with this idea ever trampled anybody's free speech rights.

Yet after being criticized by several press outlets (including this one), O'Rielly apparently decided his best bet would be to... double down on his false claims. In a new blog post over at the FCC website, O'Rielly again tries to insist that community broadband is a giant threat to free speech, but this time he attempts to vastly expand his argument in a bid to make it sound more logical. The tap dancing around his lack of evidence in his original claim is particularly amusing:

Bizarrely, my critics further responded that I had failed to provide historical “evidence” of First Amendment mischief by muni networks. Perhaps they were confused about how a constitutional violation works. A state action or law can violate the First Amendment as applied or on its face. In the case of the latter, the law or act is always unconstitutional, and in the case of the former, it is only unconstitutional to the extent of a particular application. My argument was not based on as-applied historical instances of censorship, but on facial grounds. That is, certain terms in the muni broadband codes I cited facially violate the First Amendment.

That's a misdirection and a dodge, though putting evidence in quotes is a nice touch.

O'Rielly's right on one point: some fully government-owned community ISPs could face legal challenge for trying, as government operators, to censor hate speech via mouse print. As government operators, community ISPs actually have a greater Constitutional burden to avoid censoring content online than their private counterparts (a major reason, you'll note, that none have actually tried). That said, as local operations that have to be voter approved, community ISPs also have more direct accountability to the communities they serve. Certainly more than a company like Comcast or AT&T.

O'Rielly's problem is he then takes his core tenet to make a false claim: that because some community ISP mouse print isn't legally sound, allowing community broadband to exist threatens free speech.

Recall, O'Rielly's original speech argued that these ISPs have "have engaged in significant First Amendment mischief." And again, that never happened. It might also be worth noting that one of the ISPs O'Rielly singled out was Chattanooga's EPB, the government utility and broadband ISP Consumer Reports just rated the best broadband provider in America. Throughout eighteen paragraphs, O'Rielly still can't provide a single instance of hard evidence to support his original claim.

There's also a lot of components to the community broadband conversation O'Rielly's rambling post makes it clear he'd rather not talk about.

The biggest thing O'Rielly would prefer people not understand is that community broadband is an organic response to market failure. It's a group of angry voters, after decades of being ignored by private ISPs like Comcast, deciding to either build a broadband network themselves, or strike a public private partnership with a company like Tucows or some other private operator. Obviously giant, entrenched incumbent ISPs have never much liked this threat of added competition. Neither have the lawmakers and politicians that generally act as a rubber stamp to those interests.

As such, demonizing such operations as "government run amok" -- as opposed to real human beings with legitimate grievances expressing their democratic rights -- has long been the fashion trend among folks like O'Rielly. And you certainly shouldn't point out to O'Rielly that studies show such community-run networks tend to offer better service, lower prices, and more transparency in billing than most incumbent ISPs. Dismissing this entire trend as "a perverse form of socialism" shows a painful misunderstanding of what's actually happening.

And the biggest thing O'Rielly would rather nobody talk about is his and Ajit Pai's proposed "solution" to this "problem": protectionism. For the better part of two decades, ISPs have literally written and purchased more than 21 state laws that either outright ban, or greatly hinder, the ability for towns and cities to build their own networks or strike creative broadband solutions like public/private networks. Both Pai and O'Rielly have breathlessly supported such laws, in pretty stark contrast to traditional Conservative claims of adoring "state rights" and disliking unnecessary regulatory market intervention.

Again, O'Rielly's just engaged in fear mongering in a bid to scare folks away from an organic, democratic response to decades of sketchy broadband availability and limited competition. Communities aren't getting into the broadband business because they think it's fucking fun, they're doing so because of market failure. If ISPs want to stop the rising tide of community broadband, the solution is simple: offer better, cheaper, more widely available broadband. They don't want to do that, so instead you get ample misdirection from the issue at hand, and a bizarre demonization of folks who are actually trying to fix the problem.

Filed Under: 1st amendment, fcc, free speech, mike o'rielly, muni broadband, municipal broadband

Ex-Sheriff Joe Arpaio Claims Three Publications Did $300 Million In Damage To His Pristine Reputation

from the exponential-thinking dept

Former sheriff (and ongoing blight on the state of Arizona) Joe Arpaio has decided to sue a handful of new agencies for defamation. The slightly-overwrought press release from FreedomWatch (and founder Larry Klayman) alleges defamation per se on the part of CNN, the Huffington Post, and Rolling Stone and claims these three publications caused $300.5 million in damage to Arpaio's otherwise impeccable reputation.

Here's Freedom Watch's zesty summation of the lawsuit:

"It's time that someone stood up to the Left's 'Fake News' media, which is bent on destroying anyone who is a supporter of the president and in particular Sheriff Arpaio. My client will not be bullied by the likes of Jeff Zucker, Chris Cuomo, the Huffington Post, and Rolling Stone, as he alone has the courage to stand up for not just himself, the President of the United States but also all fair-minded and ethical Americans."

Ok, then. If you think the lawsuit itself is a much more buttoned-down affair, then you haven't read a Larry Klayman complaint before. It starts with the usual stuff establishing standing before getting down to the focus of the complaint. The alleged defamation committed by all three defendants is referring to Joe Arpaio as a "convicted felon" when his only conviction was for a misdemeanor. Rolling Stone issued a correction but the other two defendants haven't corrected their original misstatements. Hence the lawsuit -- Arpaio and Klayman's public attempt to stick it to the "Left Fake News media."

Here's why Arpaio feels he's owed $300 million for a couple of standing misstatements. Running for an open US Senate seat must pay really well.

Plaintiff Arpaio’s chances and prospects of election to the U.S. Senate in 2020 have been severely harmed by the publication of false and fraudulent facts in the Defamatory Article. This also harms Plaintiff financially, as his chances of obtaining funding from the Republican establishment and donors for the 2020 election have been damaged by the publication of false and fraudulent representations in the Defamatory Article.

Given the pardon issued to him by the Republican president currently in office, it seems unlikely his reputation suffered any damage from these incorrect statements. If anything, it only further damaged the reputation of these publications, at least in the eyes of Arpaio supporters (which presumably includes a sizeable percentage of Republican voters).

Arpaio managed to survive hundreds of self-inflicted reputational wounds during his years as sheriff, so it's a bit of a stretch to claim three "fake news" sources have done anything more than further cement his reputation as a martyr to the cause.

Arpaio also claims this has damaged his reputation within the law enforcement community. Again, it seems unlikely to have budged the needle there either. Law enforcement agencies tend to view the press with the same suspicion Arpaio does and probably agree the ex-sheriff was persecuted rather than prosecuted.

Nevertheless, there's potential money to be made. And Klayman, representing Arpaio, isn't above using a federal lawsuit as soapbox. At times, the complaint [PDF] more resembles a transcript of a YouTube monologue than a statement of facts and allegations.

Defendants are aware of these prospective business relationships and thus, given their malice and leftist enmity of Arpaio sought to destroy them with the publication of the subject Defamatory Publications.

Defendants published the Defamatory Publications to influence the RNC, the RNCC and affiliated political action committee and persons, and other donors, to withhold funding for Plaintiff Arpaio’s 2020 political campaign by smearing and destroying his reputation and standing in his law enforcement, government and political community.

Plaintiff Arpaio has been harmed as to his reputation as “America’s Toughest Sheriff” and financially by the publication of the Defamatory Article.

[insert fire emoji]

While it's true publications got the facts wrong, Joe Arpaio is an extremely public person. This raises the bar he must meet to succeed in this lawsuit. While the publications may have been careless in incorrectly noting the level of the offense that Arpaio was convicted for, that's not nearly enough to secure a favorable ruling.

The difference between convicted felon and convicted misdemeanant probably doesn't mean much when placed in the totality of Arpaio's recent history. Arpaio was convicted of contempt and spent part of the last decade being investigated by the DOJ. Add this to his long history of civil liberties violations and refusal to adhere to court orders, and the difference between a felony conviction and a misdemeanor is a rounding error.

Arpaio's reputation has been leaking hit points for a long time, but it has never affected his popularity with his presumed voter base. The rest of America may hate "America's Toughest Sheriff," but his supporters can't get enough of him. Three mistakes by three publications is unlikely to have caused $300-worth of damage to the ex-sheriff's Senatorial chances, much less $300 million. Some people are just defamation-proof and it's a good bet Joseph Arpaio is one of them.

Arpaio's welcome to waste the court's time and his own money claiming the "fake news" media dinged his rust bucket of a reputation, but he's not going to be happy when the court apprises him of the above facts. The problem is these three publications will have to spend some money of their own defending against a seriously weak lawsuit. With the DC circuit having decided it doesn't need to apply the District's own anti-SLAPP law to federal cases, it's likely the defendants will be stuck with covering their own costs, even if they prevail. On top of that they'll have to deal with an opposing counsel with a penchant for pissing off judges and treating the courtroom like a heated Periscope broadcast. It's a waste of everyone's time and money but Klayman's. I'm pretty sure he didn't take this on contingency.

Filed Under: 1st amendment, defamation, first amendment, free speech, joe arpaio, larry klayman, reputation
Companies: cnn, huffington post, rolling stone

Super Injunction Silences News About Vatican Official's Child Molestation Conviction, And That's Bullshit

from the blatant-censorship dept

We've written in the past about things like "super injunctions" in the UK and elsewhere that often put a huge and near absolute gag order on writing about a famous person enmeshed in some sort of scandal, and apparently Australia has such a thing as well -- and it's now scaring off tons of publications from writing about the fact that George Pell, the Vatican's CFO and often called the "3rd most powerful person in the Vatican" was convicted on all charges that he sexually molested choir boys in Australia in the 1990s. However, the press is barred from reporting on it based on one of those gag orders. The Herald Sun in Australia did post a brilliant, Streisand Effect-inducing front page display about how it was being censored from publishing an important story:

Though, if you click on the link in that tweet it now shows an error message reading Error 400 and "Content is deleted, expired or legal killed." Legal killed.

And here's the thing. Very few publications -- even those outside of Australia -- seem to be willing to pick up on the story. To their credit, the NY Post, owned by Australian Rupert Murdoch has posted about it as has Margaret Sullivan at the Washington Post, who included an impassioned plea for this kind of censorship to not be allowed to continue.

The secrecy surrounding the court case — and now the verdict — is offensive. That’s especially so because it echoes the secrecy that has always been so appalling a part of widespread sexual abuse by priests.

That has changed a great deal in recent years — in part because of the Boston Globe’s Pulitzer Prize-winning investigation in 2002 that broke open a global scandal and was the subject of the Oscar-winning film “Spotlight.” (Current Washington Post Executive Editor Martin Baron was executive editor at the Globe at that time.)

But clearly, it hasn’t changed entirely. And the news media shouldn’t be forced to be a part of keeping these destructive secrets.

Steven Spaner, Australia coordinator from the Survivors Network of Those Abused by Priests told the Daily Beast he felt frustrated and left “in the dark” because of the suppression of news about Pell.

“It’s hard to know if there are any shenanigans going on — things the church did that are illegal themselves,” he said. “There is always suspicion when you don’t know what is going on.”

The story itself was actually broken by The Daily Beast (first link up top), but as that site's editor told Sullivan at the Washington Post, they were a bit worried about doing so:

Editor in chief Noah Shachtman told me that he waded carefully into the dangerous legal waters.

“We understood there could be legal, and even criminal, consequences if we ran this story,” said. “But ultimately, this was an easy call. You’ve got a top Vatican official convicted of a horrific crime. That’s major, major news. The public deserves to know about it.”

Shachtman said the Daily Beast did its best to honor the suppression order, consulting with attorneys here and in Australia, and even “geo-blocking” the article so that it would be harder to access in Australia, and keeping headlines “relatively neutral.”

If you do look around, there are a bunch of news articles, including some in Australia, all published after the verdict, talking about how the Pope has "removed" Pell from his "inner circle" and hinting at "historical sexual offences" but not saying that he's been convicted. And even the news of the removal is made to sound rather benign:

A Vatican spokesman said Francis had written to the prelates “thanking them for the work they have done over these past five years”.

Or here's an article from the Australian again published after the conviction, but not mentioning a word of it, and making it sound like Pell's removal was merely his term being up:

The Vatican said it had written to Cardinal Pell and his two colleagues in late October, telling them their roles on the C9 council had expired at the end of their five-year tenure.

[....]

“In October, the Pope had written to three of the more ­elderly cardinals — Cardinal Pell from Australia, Cardinal ­Errazuriz from Chile and Cardinal Monsengwo of Congo — thanking them for their work,” he said.

“After a five-year term, these three have passed out for the ­moment.”

And the Washington Post's Editor, Marty Baron, has now had to defend publishing Sullivan's piece:

If you can't read that, it says:

This story is a matter of major news significance involving an individual of global prominence. A fundamental principle of The Washington Post is to report the news truthfully, which we did. While we always consider guidelines given by courts and governments, we must ultimately use our judgment and exercise our right to publish such consequential news. Freedom of the press in the world will cease to exist if a judge in one country is allowed to bar publication of information anywhere in the world.

It seems heavily implied by this statement that the Washington Post has been contacted about its story.

Some may argue that there is, in fact, a good reason for the suppression orders. Specifically, the idea is to have trials of prominent figures be "impartial" and not influenced by media coverage. And you can understand the basic reasoning for that -- though, in this case, there is already a conviction, and that seems obviously newsworthy. The response to that argument is that Pell is still facing more such charges in another trial. I'm sympathetic to these arguments, but only to the point that I understand the emotional position from which those arguments are made. I cannot, however, agree that they are good reasons. Yes, media sensationalism around a trial can be an issue, but in the US we've been able to deal with that fairly successfully over the years with the way courts treat jurors and order them not to read the press coverage. Is it a perfect system? Nope. Not at all. But it does mostly function. On the flip side, the ability to do damage through these gag orders is immense.

Among other things, it hides the details of what's happening at the trial, and those details can really matter, as Sullivan's article quote above makes clear. In addition, only being able to reveal details way after the fact very much dilutes or even totally destroys the impact of such stories. It is much harder to make people care about this news much later, after it has been suppressed, than when it first comes out.

On top of that, all of this relies on the idea that those issuing these gag orders always do so with the best of intentions, and that's a huge leap of faith. The opportunity for mischief here is great, as we've seen in the UK with some of its super injunctions.

This kind of thing is one of the reasons why we're so concerned here about encroachments on free speech by governments. The ability to order platforms to censor material is a massively slippery slope. Indeed, in searching for the news coverage about this, I couldn't find any of the actual coverage of the convictions on Google News. I could only find the stories about the much more tame "removed from the inner circle." It may be that Google News algorithms picked up on that story more prominently (in part because there are many more such stories) or it could be because Australia has told Google News not to post such stories. At the very least, it's ambiguous and concerning.

Having a free and open press is a pretty key aspect of democracy. Australia is making it clear that it doesn't buy into that, and tragically, it's leading to new publications around the world choosing not to report on a huge story with immense public impact.

Filed Under: australia, free press, free speech, george pell, journalism, reporting, vatican

Arkansas Politician Introduces Bill To Make It Illegal For Social Media Companies To Block Content He Likes

from the bonus-round-of-bad-ideas-immediately-follows dept

Arkansas state rep Johnny Rye is in galaxy mind mode. He's introduced a bill that aims to stop "censorship" by social media platforms by allowing the government to compel speech. I'm sure the irony is lost on Rye. But it's probably not the only thing sailing over Rep. Rye's head. (h/t Sarah McLaughlin)

What Rye is trying to stop is social media companies moderating their own platforms. He appears to feel conservatives are being "censored" by Facebook, Twitter, etc. and thinks rolling over the First Amendment and Section 230 immunity is going to cure this perceived ill.

Holy hell, the bill [PDF] is a mess. I'm going to have to quote from it at length because it's the only way any discussion of it can achieve semi-coherence. Here's the gist of it, from David Ramsey of the Arkansas Times:

The bill would allow plaintiffs to seek damages of a minimum of $75,000 "per purposeful deletion or censoring of the social media website user's speech" plus actual damages and punitive damages if aggravating factors are present. Only social media companies with at least 75 million subscribers would be subject to Rye's bill.

Slightly more specifically, the "Stop Social Media Censorship Act" says this:

The owner or operator of a social media website who resides in this state is subject to a private right of action by a social media website user if the social media website purposely:

(i) Deletes or censors a social media website user's religious or political speech; or

(ii) Uses an algorithm to suppress religious or political speech.

How does Rep. Rye get around the fact that private companies can moderate content on their platforms however they'd like without it being "censorship?" Easy. He just unilaterally declares Facebook, et al to be "public utilities." Problem solved.

A social media website is considered a public utility under this section.

Pretty cool. I didn't know writing worked that way. Let me see if I've got the hang of this…

Rep. Rye is considered a nuisance and threat to public safety under this section.

Now I just need to send the cops around to restore public safety by taking Rep. Rye out of the rotation.

The good news is social media companies can limit the monetary damages by restoring/uncensoring posts a user complains about. (Presumably using an in-court complaint form, rather than the site's online forms.) There's your compelled speech, which is just another misshapen cherry on the top of shit sundae.

Here's Rye's tiny concession to the First Amendment, which isn't really a concession, nor even compliant with the First Amendment. This must be Rye's idea of "narrow crafting."

A social media website is immune from liability under this section if it deletes or censors a social media website user's speech or uses an algorithm to disfavor or censure speech that calls for immediate acts of violence, is obscene, or pornographic in nature.

Rye is generously allowing platforms to engage in the sort of moderation they already engage in. They're free to moderate certain kinds of speech, just not the kind of speech Rye likes. And if users aren't willing to sue over "censorship" themselves, the state is empowered to draw inferences on their behalf.

The Attorney General may bring a civil cause of action under this section on behalf of social media website users who reside in this state whose religious speech or political speech has been censored by a social media website.

If you're wondering why Rep. Rye has crafted this monument to his own stupidity, David Ramsey has your answer:

Rye's bill comes in the same week that Sen. Jason Rapert vociferously complained about being temporarily barred from sending tweets by Twitter. A tweet that Rapert sent out regarding Muslims was found by the company to violate its "hateful conduct policy." The company imposed a timeout that lasted at least 12 hours, according to a printout of Twitter's communication that Rapert held up to the camera in a Facebook Live post. The offending tweet has apparently been removed.

Here are a couple other things Rye is pitching this legislative session:

Make it a felony to relocate, alter, remove, rename, rededicate or otherwise disturb historical monuments on public property without the permission of the Arkansas History Commission.

Create a special license plate for members of the Arkansas Masonic Lodge of Free and Accepted Masons.

So, a "no tearing down Confederate war hero statues" bill, and a special license plate for himself. From Rye's bio:

He is active in the Lions Club and Masonic Lodge.

This wave of proposed legislation follows last year's failed attempt to repeal the state's recognition of same-sex marriages.

And he's looking for even more internet regulation, this time under the guise of fighting sex trafficking. This bill [PDF] would ban anyone from selling any devices that access the internet without pre-installed "blocking software." This is at least as batshit as his social media censorship proposal.

A distributor shall not in this state manufacture, sell, offer for sale, lease, or distribute a product that makes content accessible on the internet unless the product:

(A) Contains active and properly operating blocking software that renders obscene material inaccessible;

(B) Prohibits access to content that is prohibited under this chapter;

(C) Prohibits access to revenge pornography;

(D) Prohibits access to a website that facilitates prostitution; and

(E) Prohibits access to a website that facilitates human trafficking.

The list of "prohibited content" includes revenge porn, "specified anatomical areas," and obscene material. The reseller or manufacturer violating this law is subject to a $500 fine… wait for it:

...for each prohibited image, video or audio depiction, or website found to be accessible at the time of the offense.

On top of adding new software to their devices, resellers and manufacturers will also foot the bill for a 24/7 complaint hotline to report overblocking/underblocking.

The good news (I guess) is that Arkansans still have the option to see turgid penises and whatnot. All they have to do is pay $20 and state, in writing, that they're above the age of 18 and definitely want to see as many "specified anatomical areas" as possible. Proof of age must also be submitted. The bill does not specify whether this will restore access to revenge porn or trafficked humans, but one would assume it's an all-inclusive fee.

Sex trafficking will somehow be prevented by the state AG dumping collected fines into a strongbox marked "for the children," because nothing's too on the nose for Johnny Rye:

Fines levied by a court under subdivision (a)(2)(A) of this section shall be deposited into the Safe Harbor Fund for Sexually Exploited Children.

Whew. What a time to be alive. And in Arkansas. And knowing you still have two more years before you can unceremoniously return Johnny Rye to the private sector he so very badly wants to harm.

Filed Under: 1st amendment, arkansas, censorship, free speech, johnny rye, section 230

If You're Worried About Bad EU Internet Regulation, Just Wait Until You See The New Terrorist Regulation

from the bye-bye-free-speech-online dept

This seems to be the year for awful internet regulation by the EU. At least there were some redeeming qualities in the GDPR, but they were few and far between, and much of the GDPR is terrible and is creating real problems for free speech online, while simultaneously, undermining privacy and giving repressive governments a new tool to go after critics. Oh, and in the process, it has only made Google that much more dominant in Europe, harming competition.

And, then, of course, there's the still ongoing debate about the EU Copyright Directive, which will also be hellish on free speech. The entire point of Article 13 in that Directive is to wipe away the intermediary liability protections that enable websites to host your content. Without such protections, it is not difficult to see how it will lead to a widespread stifling of ideas, not to mention many smaller platforms for hosting content exiting the market entirely.

But here's the thing: both of those EU regulations are absolutely nothing compared to the upcoming EU Terrorist Regulation. We mentioned this a bit back in August, with the EU Commission pushing for the rule that all terrorist content must be taken down in an hour or face massive fines and possible criminal liability. Earlier this year, Joan Barata at Stanford wrote a compelling paper detailing just how extreme parts of the proposed regulation will go.

Among the many questionable bits of the Terrorist Regulation are that it will apply no matter how small a platform is and even if they're not in the EU, so long as the EU claims they have a "significant number" of EU users. Also, if a platform isn't even based in the EU, part of the proposal would require the companies to hire a "representative" in the EU to respond to these takedown demands. If the government orders a platform to take down "terrorist" content, a platform has to take it down within an hour and then set up "proactive measures" to stop the same content from ever being uploaded (i.e., mandatory filters).

Oh, and of course, this mechanism for rapid and permanent censorship based solely on the government's say so, has... a ridiculously vague "definition" of what counts as "terrorist content."

'terrorist content' means one or more of the following information:

(a) inciting or advocating, including by glorifying, the commission of terrorist offences, thereby causing a danger that such acts be committed;
(b) encouraging the contribution to terrorist offences;
(c) promoting the activities of a terrorist group, in particular by encouraging the participation in or support to a terrorist group within the meaning of Article 2(3) of Directive (EU) 2017/541;
(d) instructing on methods or techniques for the purpose of committing terrorist offences.

There are all sorts of problems with this, and as the IP-Watch site notes, this appears to be a recipe for private censorship on the internet.

Recently, a large group of public interest groups sent a letter to EU regulators laying out in great detail all of the problems of the regulation. I'm going to quote a huge chunk of the letter, because it's so thorough:

Several aspects of the proposed Regulation would significantly endanger freedom of expression and information in Europe:

• Vague and broad definitions: The Regulation uses vague and broad definitions to describe ‘terrorist content’ which are not in line with the Directive on Combating Terrorism. This increases the risk of arbitrary removal of online content shared or published by human rights defenders, civil society organisations, journalists or individuals based on, among others, their perceived political affiliation, activism, religious practice or national origin. In addition, judges and prosecutors in Member States will be left to define the substance and boundaries of the scope of the Regulation. This would lead to uncertainty for users, hosting service providers, and law enforcement, and the Regulation would fail to meet its objectives.
• ‘Proactive measures’: The Regulation imposes ‘duties of care’ and a requirement to take ‘proactive measures’ on hosting service providers to prevent the re-upload of content. These requirements for ‘proactive measures’ can only be met using automated means, which have the potential to threaten the right to free expression as they would lack safeguards to prevent abuse or provide redress where content is removed in error. The Regulation lacks the proper transparency, accountability and redress mechanisms to mitigate this threat. The obligation applies to all hosting services providers, regardless of their size, reach, purpose, or revenue models, and does not allow flexibility for collaborative platforms.
• Instant removals: The Regulation empowers undefined ‘competent authorities’ to order the removal of particular pieces of content within one hour, with no authorisation or oversight by courts. Removal requests must be honoured within this short time period regardless of any legitimate objections platforms or their users may have to removal of the content specified, and the damage to free expression and access to information may already be irreversible by the time any future appeal process is complete.
• Terms of service over rule of law: The Regulation allows these same competent authorities to notify hosting service providers of potential terrorist content that companies must check against their terms of service and hence not against the law. This will likely lead to the removal of legal content as company terms of service often restrict expression that may be distasteful or unpopular, but not unlawful. It will also undermine law enforcement agencies for whom terrorist posts can be useful sources in investigations.

The European Commission has not presented sufficient evidence to support the necessity of the proposed measures. The Impact Assessment accompanying the European Commission’s proposal states that only 6% of respondents to a recent public consultation have encountered terrorist content online. In Austria, which publishes data on unlawful content reports to its national hotline, approximately 75% of content reported as unlawful were in fact legal. It is thus likely that the actual number of respondents who have encountered terrorist content is much lower than the reported 6%. In fact, 75% percent of the respondents to the public consultation considered the internet to be safe.

And that's not all. The UN's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (yup, that's the title), David Kaye, has also sent a letter warning of the problems of such a regulation on free speech. It's 14 pages long, but the key point:

...we wish to express our views regarding the overly broad definition of terrorist content in the Proposal that may encompass legitimate expression protected under international human rights law. We note with serious concern what we believe to be insufficient consideration given to human rights protections in the context of to the proposed rules governing content moderation policies. We recall in this respect that the mechanisms set up in Articles 4-6 may lead to infringements to the right to access to information, freedom of opinion, expression, and association, and impact interlinked political and public interest processes. We are further troubled by the lack of attention to human rights responsibilities incumbent on business enterprises in line with the United Nations Guiding Principles on Business and Human Rights.

In other words, yet another European regulation targeting internet companies (many of whom are not based in Europe) that will ultimately lead to (1) greater censorship (2) more consolidation by internet giants, as smaller platforms won't be able to compete, and (3) massive "unintended" consequences for the internet as a whole.

Maybe it's time we just kick the EU off the internet. Let them build their own.

Filed Under: censorship, eu, eu terrorism regulation, free speech, takedowns, terrorism, terrorist content