Judge Lets NRA's 1st Amendment Lawsuit Against Andrew Cuomo Move Forward

from the when-the-2nd-meets-the-1st dept

Let's put some cards on the table to start off this post: I think Andrew Cuomo is a terrible governor of NY (and he was a terrible Attorney General before that), and doesn't deserve to be in office. I also think the NRA is a joke of an organization, that stirs up bullshit fear and racial divisions, and frequently shits on the 1st Amendment plenty of times when people try to challenge the 2nd Amendment. I recognize that some percentage of you probably feel differently about Cuomo and (chances are...) a non-overlapping venn diagram of you probably feel differently about the NRA. I think they're both terrible and should disappear from public life. And I say that upfront because my position on this particular lawsuit has nothing to do with which side I "like." I don't like either one.

But on the law in this particular case, clearly the NRA is in the right, while Cuomo is wrong. And thankfully, so far a judge agrees.

Let's take a step back, though, to look at what's happening. Cuomo is no fan of the NRA. And he decided to use his position as governor to punish the NRA for its advocacy. Back in April, he put pressure on banks and other financial institutions to cut all ties with the NRA. It's kind of incredible that he would think this would fly. Indeed, the situation is pretty damn close to that time that Cook County (Illinois) Sheriff Thomas Dart pressured credit card companies to stop doing business with Backpage, leading to a pretty massive judicial smackdown from Judge Richard Posner.

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Posner, in the Dart/Backpage case, recognized that allowing government officials to pressure third parties into avoiding businesses they disliked over speech was a real problem:

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or “plug the band” (a listing of music performances that includes such dubious offerings as “SUPERCELL Rocks Halloween at The Matchbox Bar & Grill”), or men dating men or women dating women...

Or, you could add to that list, and say "the 2nd Amendment." And it would fit right in with what Cuomo did regarding the NRA:

"I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities who often look to them for guidance and support. This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all."

Even if you think that the NRA is a horrible organization, and that various private entities should rethink any association they have with the NRA, that's entirely different than a powerful government official making such a statement.

But, of course, what many in the press writing about this have ignored is that this kind of bullying has been Cuomo's playbook for years. When he was Attorney General, we had a ton of articles about the same grandstanding move, in which Cuomo would pick some high profile issue, then publicly threaten to sue organizations if they didn't go along with his "voluntary" plan, which would be announced at a giant press conference with a smiling Andrew Cuomo. He did this in forcing broadband providers to set up porn filters. He did it in forcing social media sites to block access to porn sites again. He also did it in trying to force broadband providers to kick users off their networks over copyright infringement. And no one calls him on this abuse of power.

Except, now the NRA has. And a federal judge is letting the case move forward after denying a motion to dismiss from Cuomo's team. The order makes it clear that Cuomo might finally face some constitutional push-back on his intimidation techniques. It's still early in the case, so things could change, but Judge Thomas McAvoy is not impressed by Cuomo so far.

Viewing the allegations in the light most favorable to the NRA, and drawing reasonable inferences in its favor, the temporal proximity between the Cuomo Press Release, the Guidance Letters, and the Consent Orders plausibly suggests that the timing was intended to reinforce the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state.

The judge finds, as in other cases, that there's a clear implied threat in the message coming from the Governor of the state of New York:

While neither the Guidance Letters nor the Cuomo Press Release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed.

There's still much more to go in the case, and as the case moves into discovery, perhaps there will be other revelations, but right now it certainly looks like a government official abusing his position to try to retaliate against an organization he doesn't like for their expressive speech.

And, yes, there's something potentially ironic in the NRA now being protected by the very same 1st Amendment that it so frequently complains about in blaming video games, TV, and movies for gun violence, but it turns out that you don't actually have to believe in the Constitution to be protected by it, and that's kind of a good thing.

Filed Under: 1st amendment, advertisers, andrew cuomo, censorship, coercion, free speech, government, intimidation
Companies: nra

CNN Lawsuit Seeks To Show That Trump Can't Kick Reporters Out For Asking Tough Questions

from the but-what-about-the-flip-side? dept

As you've probably heard by now, last week there was a bit of a scuff up in which the President in his standard manner got irritable and annoyed when CNN's Jim Acosta kept asking questions the President didn't feel like answering. This has resulted in a bunch of nonsense involving everyone trying to justify their own side's talking points -- but the simple fact of the matter is that it's a journalist's job to ask tough questions of politicians. There was a made up controversy involving claims that Acosta "assaulted" an intern who sought to take away his microphone, and the White House supported it with video evidence that some have claimed was doctored, while others have noted just happened (coincidentally) to have been re-encoded in a way that made Acosta's hand motions look more menacing than they really were. Either way, the end result was that the White House removed Acosta's press pass, claiming it was because of what happened with the intern, when literally everyone knows it was because of his questioning (if you want to honestly argue that it was because of the intern, go away).

On Tuesday, CNN announced that it had filed a lawsuit against the White House over the removal of the press pass, arguing that it violated both 1st Amendment and 5th Amendment rights. CNN and Acosta are represented by Ted Boutrous and Ted Olson (along with some other Gibson, Dunn lawyers) which is some serious firepower as they're two of the most high profile lawyers out there. Olson, a former Solicitor General during the George W. Bush administration, was rumored earlier this year to be considering joining Trump's legal team, before declining. And now he's suing Trump's White House.

The filing is only 18 pages and makes for fairly quick reading. The 1st Amendment claims are basically this:

Defendants initially claimed that they revoked Acosta’s press pass because he “plac[ed] his hands” on an intern. That contention is not accurate. The President himself has stated that the Acosta’s conduct was not “overly horrible” and that Acosta’s credentials were actually suspended because he failed to “treat the White House with respect.”

Defendants’ justifications for impeding Plaintiffs’ First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs’ exercise of protected First Amendment activity.

The sole justification for Defendants’ conduct is their dislike for Plaintiffs’ coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs’ First Amendment rights.

The 5th Amendment claims are basically a "due process" claim:

Plaintiffs have protected liberty and property interests in Acosta’s press credentials and the access it affords to the White House. The credentials allow Acosta access to his office in the White House and allow him to do his job effectively. Absent his credentials, he cannot serve as a White House correspondent.

Acosta received no direct notice from the White House that his credentials had been revoked, let alone any notice prior to the revocation. Instead, the White House announced the revocation itself via Twitter after Defendants already decided to effectively ban Acosta from the White House grounds.

Defendants did not provide Plaintiffs a written explanation, nor any explanation at all, before revoking Acosta’s press credentials. The only written explanation was a short statement posted on Twitter that Acosta was suspended because he “plac[ed] his hands” on a White House staffer. Even if this tweet were accurate—and it is not, as the reportedly doctored video Defendant Sanders posted would later show—it would not suffice to demonstrate prior notice of the revocation.

Defendants did not provide Plaintiffs an opportunity to be heard before revoking Acosta’s press credentials. Nor have they provided him any avenue to challenge or appeal the revocation of his credentials. Rather, Defendants have stated that they do not plan to ever rescind the revocation of Acosta’s credentials.

There are good reasons to think that CNN/Acosta may have a decent chance of prevailing. The key case, as many are pointing out, is the DC Circuit's ruling in Sherrill v. Knight, which more or less says that if the government opens up a briefing to the press, it can't arbitrarily deny a member of the press entrance. That ruling makes it clear that the President doesn't need to grant interviews to anyone who comes asking, but he can't arbitrarily bar a member of the press from an open press briefing. And the court also includes a due process requirement.

On the 1st Amendment claim in that case, the court noted that the White House needs to have a compelling interest in keeping a reporter out, and the details of the standards used by the White House need to be clear:

Given these important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, such refusal must be based on a compelling governmental interest. Clearly, protection of the President is a compelling, "even an overwhelming," interest, Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), and we have no basis for rejecting the explicit finding of the District Court that the record in this case demonstrates that denial of a press pass to appellee proceeded solely from concern for "the physical security of the President." 416 F.Supp. at 1036 n.10. However, this standard for denial of a press pass has never been formally articulated or published. Merely informing individual rejected applicants that rejection was for "reasons of security" does not inform the public or other potential applicants of the basis for exclusion of journalists from White House press facilities. Moreover, we think that the phrase "reasons of security" is unnecessarily vague and subject to ambiguous interpretation.

Therefore, we are of the opinion that appellants must publish or otherwise make publicly known the actual standard employed in determining whether an otherwise eligible journalist will obtain a White House press pass. We do agree with appellants that the governmental interest here does not lend itself to detailed articulation of narrow and specific standards or precise identification of all the factors which may be taken into account in applying this standard. It is enough that the Secret Service be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or his immediate family so serious as to justify his exclusion. See A Quaker Action Group v. Morton, 170 U.S.App.D.C. 124, 516 F.2d 717 (1975). This standard is sufficiently circumspect so as to allow the Secret Service, exercising expert judgment which frequently must be subjective in nature, considerable leeway in denying press passes for security reasons. At the same time, the standard does specify in a meaningful way the basis upon which persons will be deemed security risks, and therefore will allow meaningful judicial review of decisions to deny press passes. We anticipate that reviewing courts will be appropriately deferential to the Secret Service's determination of what justifies the inference that an individual constitutes a potential risk to the physical security of the President or his family.

And it also notes a 5th Amendment issue:

In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment. The only further determination which this court must make is "what process is due," Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).[23] We think that notice to the unsuccessful applicant of the factual bases for denial with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons. See Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). The requirement of a final statement of denial and the reasons therefor is necessary in order to assure that the agency has neither taken additional, undisclosed information into account, nor responded irrationally to matters put forward by way of rebuttal or explanation.

That ruling is likely to make this a tough case for the Trump White House. For what it's worth, many are highlighting that the case in the district court has been assigned to Judge Timothy Kelly, who is a Trump appointee, though I wouldn't read very much into that. Kelly has already ordered the White House to file a response this morning, and there will be a hearing held this afternoon, so things are moving quickly.

I've seen some people, perhaps reasonably, arguing that CNN filing this lawsuit is a distraction -- and one that plays into Trump's claims that the press is out to get him. I'm not sure I buy that, as Trump's supporters already believe that, and this isn't likely to change anyone's mind. But more clearly establishing rules for the press to be declined press passes is an interesting question. Of course, it's also one where I wonder if many of the people cheering this on would be freaking out if things were in reverse. Imagine a Democratic President denying a press pass to Infowars and/or Breitbart -- and imagine how a CNN victory in this case might be used in such a scenario.

Frankly, I think the issue here should be rather straightforward: if the government is holding a press conference, it should have clearly defined content-neutral rules for who qualifies for a press pass. If the press pass is in any way contingent upon the type of coverage, that would be unconstitutional. But other rules that are more objective and apply across the board seem perfectly reasonable. Over the years we've had many stories on journalists from more alternative outlets being denied press passes for dubious reasons, and on the whole I think governments should be much more inclusive of media. But, at the very least, if the decisions are based on the content of their reporting, it would appear to be entirely unconstitutional. And here it is abundantly obvious that Acosta was removed for reasons related to his content, with the claims about contact with the intern being purely pretextual.

Filed Under: 1st amendment, 5th amendment, jim acosta, press credentials, press pass, white house, white house briefing, white house press corp.
Companies: cnn

Pennsylvania Attorney General Sends Broad, Unconstitutional Gag Order To Gab's New DNS Provider

from the security-through-intimidation dept

Because nothing motivates stupid legislative activity better than a tragedy, various officials are moving forward with dubious activities in the wake of the Pittsburgh synagogue shooting. In the state of New York, a couple of politicians have just announced a Constitutional violation two-fer, offering to separate residents from their Second Amendment rights by using their First Amendment rights against them.

Eric Adams, the president of Brooklyn Borough, and state Senator Kevin Palmer are currently writing the proposed legislation, which would give law enforcement authorities the power to check up to three years of an individual’s social media accounts and internet search history before they are allowed to buy a gun, WCBS Newsradio 880 reported. One of the main aims is to identify any hate speech shared by the users, as the politicians noted that such offensive comments are generally only discovered after mass shootings occur.

This proposal was offered up with complete sincerity despite:

a.) Hate speech being protected under the First Amendment, and

b.) the bill not targeting Gab -- the site where the shooter's anti-Semitic speech/threats were posted.

Josh Shapiro, Pennsylvania's attorney general, has decided to do some "doing something" himself. In a statement to Haaretz one day after the shooting, the state AG promised to get to the bottom… of something.

“My office is reviewing this platform, which was used by the killer to spread his hateful messages,” Shapiro told Haaretz in an interview. “We have strong first amendment protections in this country, and that’s very important for me, but when that speech includes incitement to violence, that crosses a line. We cannot tolerate that.”

"Reviewing the platform…" Those are imprecise words promising imprecise actions. And the imprecise actions have arrived. Gab was the first to report on Shapiro's "review" of its platform. Via Twitter, Gab announced the receipt of a broad, vague subpoena from Shapiro's office. The tweets have since been deleted, but not before being archived. Here's a screenshot of the first two tweets Gab sent to AG Shapiro. (via Timothy Lee at Ars Technica)

The subpoena wasn't sent to Gab, but rather Epik, the domain provider Gab picked up after being dropped by GoDaddy in the days after the shooting. The whole subpoena -- rescued from deleted tweets -- can be found at Unicorn Riot. The subpoena demands Epik turn over pretty much any document the domain provider might have on Gab, including names and addresses of "any and all persons or entities employed by, representing, or otherwise acting on behalf of Gab."

Shapiro's fishing expedition -- which decided to bypass Gab (most likely in hopes of finding its DNS provider more cooperative) -- comes complete with a very half-assed gag order request.

Any disclosure to any person or entity, other than the person or entity identified as the Respondent, that a subpoena has been issued in this matter may jeopardize an ongoing civil investigation. Therefore, you are hereby requested to refrain from notifying any person or entity, other than said Respondent, that the subpoena has been issued.

The tweets from Gab to AG Shapiro, which included screenshots of the subpoena, likely made it clear Epik didn't think much of the AG's "shut up, please" request. Now, the overbroad demand is all over the internet, showing AG Shapiro would rather score political points post-tragedy than respect enshrined rights or statutory immunity.

First, Epik should be shielded from any civil enforcement actions against Gab under Section 230. It doesn't appear the AG is seeking to take action against Epik, but nothing about these early developments that rules this course of action out. Second, the nominal target of Shapiro's investigation contains a whole lot of unpleasant, but Constitutional speech. Third, it's unclear what Shapiro is trying to accomplish. It appears Shapiro just wants to gather a bunch of information and then decide what sort of investigation he'd like to pursue. That's not how investigations (and their attendant paperwork) are supposed to work.

It seems more like a Sheriff Dart-esque campaign of intimidation than a legitimate use of the AG's office, as Eric Goldman points out in the Ars Technica article. I guess we'll know more if Gab is forced to change registrars again. If Shapiro's office arrives shortly thereafter with subpoena in hand, the "investigation" is nothing more than a quick and dirty way to push providers away from doing business with Gab.

Filed Under: dns, domain registrars, free speech, gag order, josh shapiro, pennsylvania
Companies: epik, gab

Philippines Continues To Spit On Free Speech; Plans To Charge Key Media Critic With Bogus Claims Of Tax Evasion

from the enemy-of-the-people? dept

At the beginning of this year, we had a fairly long post about a dangerous situation brewing in the Philippines, where President Duterte was clearly trying to retaliate against one of his chief media critics, The Rappler, run by Maria Ressa. As I mentioned, I got to see Ressa speak at a conference last year, and the former CNN bureau chief is a force of nature who seems completely devoted to accurately reporting on President Duterte, no matter how much he dislikes it.

When we wrote about Ressa and Rappler in January, it was over some trumped up charges concerning claims of "foreign ownership." That story is a bit complex, but in order to get a grant from the philanthropic Omidyar Network, Rappler sold what are known as Philippine Depository Receipts (or PDRs). PDRs do have value, which are tied to the value of shares in the company, but which don't grant any of the related ownership rights. And yet, Duterte and the Filipino SEC have been arguing that Rappler committed tax evasion by somehow "not reporting" the PDR's.

Rappler notes that's a complete fabrication:

Tiglao argues that Rappler’s PDR sale “is not reported in its financial statements submitted to the Securities and Exchange Commission.” (SEC)

This does not seem right.

Rappler’s financial statements and SEC general information statements have been posted on the internet. You can compare these financial statements to those in the prospectuses of ABS-CBN and GMA in the years these media companies sold PDRs, which show how PDRs are recorded by top audit firms.

Furthermore, Rappler notes that the law is pretty clear that if you sell PDRs to fewer than 20 people, you are exempt from registration requirements.

But, of course, none of this is actually about taxes and financial statements. It's about intimidating and silencing a free (and critical) press. And that's what's happening. The government has announced that it is going to charge Rappler and Ressa with tax evasion charges that basically everyone can see is completely bogus. Here's the UN's free speech guru (and recent Techdirt podcast guest) David Kaye calling out what a travesty this is:

At a time when authoritarian leaders around the world are increasingly targeting and threatening the press, we should be extra vigilant over how these attacks are expanding in both scope and in brazenness.

Here is a case where it seems quite clear that the charges are being trumped up based on Rappler's reporting, rather than based on anything even remotely legitimate. And whether or not Ressa and Rappler continue is beyond the point. The message to anyone else who wants to follow in their shoes is "don't bother, we'll make your life a living hell." Obviously that won't (and shouldn't) stop many reporters, but it can have an enormous chilling effect on many, many people.

Filed Under: censorship, chilling effects, free press, free speech, intimidation, maria ressa, philippines, rodrigo duterte, tax evasion
Companies: omidyar network, rappler

Governor Of Tanzania's Capital Announces Plan To Round Up Everyone Who Was Too Gay On Social Media

from the tanzanian-devil dept

There has been an unfortunate trend in far too many African nations in which governments there look at the internet as either a source of evil in their countries or purely as a source for tax revenue, or both. The end result in many cases is a speech tax of sorts being placed on citizens in these countries, with traffic being taxed, bloggers being forced to register with the federal government, and populations that could otherwise benefit from a free and open internet being essentially priced out of the benefit altogether.

But things have taken a different and far worse turn in Tanzania, where the governor of the country's capital city, Dodoma, has announced his plan to round up anyone who is perceived as being gay on the internet and chucking them in prison.

He announced his plans for sweeping arrests of gay citizens in an interview on Monday that was shared on social media, reports CNN Africa. "I have received reports that there are so many homosexuals in our city, and these homosexuals, are advertising and selling their services on the internet," said Governor Paul Makonda. "Therefore, I am announcing this to every citizen of Dar es Salaam. If you know any gays...report them to me."

"These homosexuals boast on social networks," he added.

This, of course, is horrific on many levels, from the blatant homophobia, to the inciting a mob mentality against the LGBTQ community, to the bizarre focus on their internet usage and silly claims of "advertising and selling their services" online. When called on all of this, Magufuli hid behind antiquated religious beliefs, which suggest the talk about "advertising and selling their services" is just part of the moral panic because he's homophobic:

When asked about the international backlash that the decision will undoubtedly draw, Makonda, described as a pious Christian and a loyal supporter of president John Magufuli stated "I prefer to anger those countries than to anger God," adding that same-sex relationships "trample on the moral values of Tanzanians and our two Christian and Muslim religions," as quoted in News 24.

In which case anything to do with "selling services" is complete bullshit and this is entirely about hating gay people. And, importantly, it's about using people's speech on social media platforms as the basis for rounding up those "gay" people and throwing them in jail for no other crime than being gay on the internet.

And if anything were anathema to the very concept of a free and open internet, it surely must be this. The chief benefit of a communications platform like the internet is to allow for expression and the introduction of new ideas and personas to a wider populace. Turning that very platform into a weaponized platform for building hit lists should be sending up all kinds of red flags across the world.

If this indeed goes forward, the international moral outrage had better be swift and massive, or we'll have confirmation that the world has lost its way.

Filed Under: dodoma, lgbtq, paul makonda, social media, tanzania

New York Lawmakers Want Social Media History To Be Included In Gun Background Checks

from the get-you-a-constitutional-violation-that-can-do-both dept

Legislation arising from tragedies is almost uniformly bad. One need only look at the domestic surveillance growth industry kick started by the Patriot Act to see that fear-based legislation works out very badly for constituents.

A few New York lawmakers are reacting to the horrific Tree of Life synagogue shooting in Pittsburgh, Pennsylvania with a gun control bill that makes zero sense. Expanding on criminal background checks, these legislators are hoping to give law enforcement the opportunity to dig through gun buyers' online history.

Eric Adams, the president of Brooklyn Borough, and state Senator Kevin Palmer are currently writing the proposed legislation, which would give law enforcement authorities the power to check up to three years of an individual’s social media accounts and internet search history before they are allowed to buy a gun, WCBS Newsradio 880 reported. One of the main aims is to identify any hate speech shared by the users, as the politicians noted that such offensive comments are generally only discovered after mass shootings occur.

The facile explanation for this ridiculous piece of legislation is this: somehow the Pittsburgh shooter might have been prevented from buying a gun because he posted anti-Semitic content to a social media platform.

This premise will only make sense to those incapable of giving it more than a superficial examination. First off, gun ownership is Constitutionally-protected, whether these legislators like it or not. It doesn't make sense to abridge someone's rights over social media posts, even if the posts contain bigoted speech. That speech is also protected by the Constitution, so combining the two simply doubles the chance the law will be struck down as unconstitutional. Plenty of people engage in ignorant bigotry. Not all of them are would-be criminals.

This law would treat every gun buyer as a suspected criminal who may only take advantage of their guaranteed rights by engaging in government-approved speech. That's completely the wrong way around. This Brooklyn lawmaker doesn't seem to understand this inversion even when he directly, if inadvertently, addresses it.

“If the police department is reviewing a gang assault, a robbery, some type of shooting, they go and do a social media profile investigation,” the borough president pointed out.

Yes. But in these cases, a criminal act has occurred and an investigation is warranted. This legislative proposal treats gun buying as a crime and people's social media history as some weird form of evidence. That's fucked up, no matter how you might feel about the Second Amendment. Lots of shitposting and venting can look dangerous if viewed solely in the context of finding a reason to deny someone a gun.

Then there's the still unaddressed question of what law enforcement is supposed to do if it decides someone's social media posts are worrying enough they should be denied gun ownership. Are officers supposed to head out and arrest this person for being aggressively racist? Is that where this is headed? Are these legislators actually going to enable literal policing of speech?

And how is this supposed to be accomplished? Would potential gun buyers be forced to relinquish account info and passwords to ensure law enforcement is able to see everything purchasers have posted?

These are all worrying questions, none of which anyone involved with this bill seems to have answers for. Sure, it's still early the legislative process, but these lawmakers are speaking about it publicly using specious reasoning and inapt comparisons. This suggests they like the idea they've had, but haven't really thought about it past the point of "the Pittsburgh shooter posted racist memes, therefore this would definitely work."

This quote, given to the New York Post, adds more words but no more clarity. And it certainly doesn't do what Eric Adams claims it does:

Adams said the bills take the First Amendment right to free speech and the Second Amendment right to bear arms into the equation.

“We’re not talking about a person advertising ‘I hate a particular elected official. I hate a policy that’s passed,’” Adams said. “If there’s something that a law enforcement officer of a reasonable mind reviewed that shows this person does not hold the mental capacity to own a gun, then he should not be able to get a permit. We should use the same standard that determines whether a police officer can carry a gun.”

It doesn't take either of those rights into account. It simply says police will now be allowed to view three years of social media history (along with search history from Google, Yahoo, and Bing) to determine gun ownership eligibility. All Adams says is it won't be used to punish certain protected speech. (And it will be used to punish this specific protected speech because any law that can be abused by the government will be abused by it.)

To add to surreality of the proposal, Twitter For Bigots Gab won't be included in the social media monitoring despite this being the site where the Pittsburgh shooter posted the comments these legislators point to as the impetus for this terrible legislation.

No matter how it's pitched, it all comes down to this: no Second Amendment rights for New Yorkers if they don't use their First Amendment rights in a way their government approves.

Filed Under: 1st amendment, 2nd amendment, background checks, eric adams, first amendment, kevin palmer, new york, social media

Cop Sued For Bogus Arrest Of Man Who Broke Up The PD's Distracted Driving Sting

from the local-man-arrested-for-making-streets-safer dept

A cop couldn't handle someone diverting his revenue stream. So he decided to do something about it. That "something" was getting sued for civil rights violations. How this will improve revenue generation remains to be seen, but for now one officer of the Stamford, Connecticut police department will need to lawyer up. (via Courthouse News Service)

The plaintiff, Michael Friend, happened to notice a bunch of police officers issuing tickets to drivers for distracted driving. One officer, Richard Gasparino, was hiding behind a telephone pole on the other side of the street looking for drivers using their cellphones and relaying his suspicions to officers further down the road.

Friend moved south of the Stamford PD sting operation and held up a handwritten sign reading "Cops Ahead." This didn't sit well with Officer Gasparino, who swiftly decided he'd like to be sued by Friend and his representation. He began his tour of culpability with the following hilarious assertion. From the lawsuit [PDF]:

[T]he defendant approached Mr. Friend and snatched the sign from him.

Mr. Friend began video recording the defendant with his phone, as he thought the defendant was behaving illegally.

The defendant told Mr. Friend that he was “interfering with our police investigation” and told Friend to leave the spot where he was standing.

Calling this little operation an "investigation" really stretches the meaning of the word. There's literally zero investigating going on. A static speed camera does just as much investigating.

From there, things got worse/stupider/more unconstitutional. Friend walked away from this, headed another block south, and made a bigger sign. Thirty minutes later, Officer Gasparino came back for more. Friend again took out his phone and began recording.

[T]he defendant snatched Mr. Friend’s phone and stopped Friend from recording because he claimed to want to “protect [him]self from any false claims of physical abuse.”

Um. What? One would think a recording would be the best evidence to use against "false claims of physical abuse." I guess recordings made by citizens don't count. Officer Gasparino took the phone in Friend's hand as well as one he was carrying in his pocket. This sounds exactly like an unjustified search and seizure -- one that's at least partially captured on phone tape.

Seeing that his bogus claim of investigation interference was having zero effect on Friend's sign-making, Gasparino upped the ante by arresting Friend for interfering with the so-called "investigation." Friend was taken to the station by another officer, who helpfully explained why Gasparino was so upset with Friend and his signs.

On the ride to the police station, [Officer] Deems told Mr. Friend that he attracted police attention because he was “interfering with our livelihood.”

Deems explained to Mr. Friend that the cellphone sting was operated as an overtime assignment, funded by a federal grant which would require the Stamford police to issue a certain number of tickets in order for the grant to be renewed.

By warning motorists, Deems claimed, Mr. Friend was decreasing the number of tickets that the Stamford employees could issue, and therefore decreasing their chances of earning overtime on a cellphone sting grant in the future.

Seems like Officer Gasparino should have sued Friend for tortious interference rather than trash his signs, steal his phones, and book him on such a transparently bogus charge. Gasparino reiterated his belief that Friend's actions were illegal interference with a business model, noting that officers were not "observing as many violations as they should be," thanks to Friend's "Cops Ahead" signs.

And because he's a complete dick, Officer Gasparino set Friend's bail at $25,000… for a misdemeanor interference charge. Friend remained in jail until 1:30 the next morning. He was released by the bail commissioner who immediately set Friend's bail to $0.

But that didn't stop the financial pain for Friend. He had to purchase a new phone later that day because his other phones were still being held by the Stamford PD.

Unbelievably, it took prosecutors to set this straight, during which the prosecution took a shot at Officer Gasparino's "but muh revenue" assertions.

[W]hen Mr. Friend’s case was called, the prosecution entered a nolle prosequi and explained to the court that Mr. Friend’s signs “actually . . . help[ed] the police do a better job than they anticipated because when [drivers] saw the signs, they got off their cell phones.”

This is a master class on how to get sued, taught by Professor Gasparino. The taking of Friend's signs raise both First and Fourth Amendment concerns. There's the "shut up" part of it and the taking of someone's property without cause, even if said property was nothing more than cardboard.

Then there's the seizure of Friend's phones -- both done without cause. Even if the interference charge were credible (it isn't), there's simply no reason to believe the phones contained evidence of this crime. Any recordings that may have supported Gasparino's assertions were ended by Gasparino himself before they could have captured any "obstructing."

And finally, there's the seizure of Friend himself. This might be the most difficult count to secure a win on, considering cops are given a whole lot of leeway to arrest people for crimes both real and imagined. The imagined ones tend to be tossed by prosecutors, but the courts have consistently held officers need only believe a law was violated to effect an arrest.

None of this looks good for Officer Gasparino. These allegations lay out a sadly-credible story of a cop using his power to harm someone who made his life a tiny bit more difficult. Gasparino twice overstepped his Constitutional bounds and followed it up by making sure Friend couldn't just walk away from the stupidity by swinging a $25k bail hammer at him. This is adding injury to injury -- not exactly a great move when you might find yourself being held legally responsible for the injury pile-on.

Filed Under: 1st amendment, arrest, civil rights, connecticut, distracted driving, michael friend, richard gasparino, stamford, sting

Another Terrible Court Decision In Europe: Insulting A Religion Is Not Free Speech

from the wait,-what? dept

Let's start off with the basics, because if I don't, I know we'll be flooded with these comments: no, the European concept of "free speech" differs quite a bit from the American one. The American 1st Amendment creates extremely strong protections for all sorts of expression -- including insulting or offending expression. Europe has always been a bit more willing to shove various exceptions into the right of freedom of expression, while mostly paying lip service to the concept. Article 10 of the Human Rights Act says that you have the right to your own opinions and the freedom to share them without government interference but, in practice, Europe has always been much quicker in brushing that aside in order to engage in all sorts of censorship from prior restraint to rewriting history.

And, according to a new ruling from the European Court of Human Rights, another exception to free expression is that you can't disparage religions because it might hurt the feelings of religious practitioners. No, really.

The case, which was originally brought in Austria, involved a woman who hosted an event where she made a bunch of silly and misleading claims about Muslims and the Prophet Muhammad, in particular, claiming that because one of his marriages was to a very young girl, there was an implication that he was a pedophile (and further, strongly implying that other Muslims sought to emulate Muhammad). I'm not entirely clear as to why anyone cares what someone did over a thousand years ago (nor could anyone know with any real certainly what actually happened), but either way, some were offended by these comments -- and that's fine. If someone says offensive things, it's reasonable for some to take offense.

But to claim its a human rights violation?

Multiple lower courts found that such comments could not be permitted, and it finally went up to the European Court of Human Rights, where much of the discussion centered around what the court believed was a clash, of sorts, between freedom to express opinions and freedom to manifest religion. And, the court comes down in this with an argument that would be laughed out of any US court, in that it sets up a "balancing" test. As Ken White has explained multiple times, the Supreme Court in the US doesn't recognize any "balancing" test when it comes to free speech. In US v. Stevens, the Supreme Court explicitly rejected any sort of balancing test:

The Government's proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment's free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

With this ruling, the ECHR has clearly stated that it's going in the exact opposite direction. It directly argues that one’s free speech can be limited by law if it somehow interferes with someone else's "religious feelings."

While the applicant stressed that her statements had never been aimed at disparaging Muhammad, she did not dispute the legitimate purpose of criminal convictions under Article 188 of the Criminal Code, namely to protect religious peace. The Court endorses the Government’s assessment that the impugned interference pursued the aim of preventing disorder by safeguarding religious peace, as well as protecting religious feelings, which corresponds to protecting the rights of others...

And, while Europeans may argue, this is madness. It is exceptionally dangerous to free speech. I'm not advocating that anyone should be running around spewing ignorant arguments about religious figures that people adore, but saying that you can block free speech if it will "prevent disorder" or "protect religious feelings," means that you've created a massive heckler's veto. All you need to do is claim that hearing the speech will make you and your friends riot, or say it's truly insulted your religious "feelings", and suddenly it means the speech is not allowed. That's crazy and will lead to lots of abuse and questionable situations where people censor themselves to avoid any liability at all.

There's also some truly bizarre and incomprehensible language about how, because free expression includes "duties and responsibilities", that also means you must "ensure the peaceful enjoyment" of others’ religious beliefs. And the court states this right after noting that freedom of expression should allow for offensive, shocking and disturbing comments from non-believers about a religion:

The Court reiterates the fundamental principles underlying its judgments relating to Article 10 .... Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The Court further notes that there is little scope... for restrictions on political speech or on debate on questions of public interest.... Those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention, irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith

So, while that sounds reasonable, in the very next paragraph the court pulls out a "however..." and then proceeds to basically rip to shreds everything in the paragraph above.

... however, the exercise of the freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane

And then it's right back to the old balancing game:

The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other

The Court, towards the end, tries to argue that it's really only the truly egregious insults that will matter, but gives little guidance at all on that:

The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite hatred or religious intolerance. Article 188 of the Criminal Code (see paragraph 24 above) in fact does not incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance. The Court notes that the domestic courts extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship... The Court endorses this assessment.

And what if I were to join a religion focused on worshiping free speech -- and declared that this ridiculous ruling harmed my religious feelings by suggesting such worship was not only misplaced, but illegal? Would I then be able to claim the Court itself had violated my apparent rights to not have my religious feelings offended?

Again, no matter what you think of the nameless plaintiff's statements, which were silly, the idea that (1) that should be balanced against how upset it might make people and (2) that the balance should weigh against her, seems crazy and outright offensive to freedom of expression.

Filed Under: article 10, echr, europe, european court of human rights, free speech, human rights, religion, religious feelings

Interpol Alert Issued By Turkey For Exiled Journalists President Erdogan Wants To Toss In Jail

from the shut-up,-he-BOLOed dept

Turkey's government has already locked up more than 70 journalists -- most of them in the wake of a failed coup. President Recep Erdogan says the imprisoned journalists are terrorists and criminals, but rather than offer evidence of wrongdoing, Erdogan just keeps throwing more of them in jail.

The notoriously thin-skinned president has been eliminating dissent and criticism since he took power, so there's no reason to give his accusations of criminal activity credence. Erdogan has leaned on favorable laws elsewhere in the world to press for criminal charges and extradition of citizens of other nations who've offended his delicate sensibilities.

As a player on the world stage, Erdogan and his government will use whatever tools they have available to continue to eliminate their critics. It appears Erdogan is now asking the world's police forces to help him track down journalists he hasn't yet jailed. (h/t Mutlu Civiroglu)

Journalism in Turkey has come under renewed scrutiny after an Istanbul court issued an international arrest warrant for two prominent writers living overseas.

In a hearing against journalists linked to the Cumhuriyet newspaper, the 27th High Criminal Court said it would request the issuance of Interpol “red notices” for Can Dundar and Ilhan Tanir. The order notifies all Interpol member states that the individual has pending arrest warrants.

Mr Dundar, the newspaper’s former editor-in-chief, and Mr Tanir, its ex-Washington correspondent, currently live in Germany and the US respectively.

No one's under any obligation to arrest and extradite these "criminals." And certainly no one should feel they have to enforce Turkey's draconian anti-press measures halfway around the world. But it will make travel difficult, as databases will be pinged and info alleging criminal activity will be returned. If they happen to travel to a country that feels compelled to take Turkey's disingenuous government at its word, these journalists find themselves being sent home to face ridiculous charges in a kangaroo court.

Critical speech is its own crime in Turkey, despite what Erdogan says publicly.

“Turkey numbers among the world’s leading countries in matters of press freedom, the most advanced communications technologies, social media, the internet and journalism,” he said on Journalists’ Day in January.

You can only get away with saying something this ridiculous in a country where a large majority of news services are under direct government control and internet blockades are only a kill-switch away. When most of your journalists are in jail or have left the country, you're not in the running for Free-est Press in the World awards. You're just a thug in nation-state clothing.

Filed Under: arresting journalists, free speech, interpol, journalism, recep tayyip erdogan, turkey

The Little Rock Drug Raid Story Is A Fourth Amendment Story. But It's Also A First Amendment One.

from the all-amendments-matter dept

The Little Rock drug raid story is appalling. The indiscriminate, repeated, and systemic violation of the Fourth Amendment has been enormously destructive to people's lives, as well as an entire community. But if this situation is to be remedied, and hopefully it will be, it will be thanks to the First Amendment.

Most obviously, the First Amendment is what has allowed for Radley Balko's reporting of the story. Speaking truth about power is only possible with strong press protection. By allowing injustice to be discovered and shared, justice becomes possible. With Balko's reporting the public at large can now be aware of the abuse being done in their name, and the revelation is what will allow people to press for change. As it is, publication of the story has already led to charges being dropped against one of its other victims.

Victim Roderick Talley's own First Amendment rights also made a difference, and in several ways. One important way is that they gave him the right to film the world around him, and that let him record the police's abuse, which provided him with compelling evidence to use in his pursuit of justice.

The complex where he currently resided had recently put out a notice to residents to be on the alert for break-ins. So Talley bought a security system to monitor both the inside and outside of his apartment. About a week before the raid, the outdoor camera picked up some strange activity outside Talley’s apartment. As he sat handcuffed while police officers rifled through his belongings, he began to make the connection. The outside camera had recorded two odd incidents. First, a man whom Talley didn’t know approached the apartment while Talley wasn’t home. Looking anxious, the man knocked, waited a few moments and then left. A few days later, the camera picked up a police officer outside the door. The officer looked around, snapped a photo of Talley’s door with his cellphone, and left. .

[…]

After reading the affidavit, Talley went back to check the camera footage of his mysterious visitor from the previous week. “Sure enough,” he says. “The dates matched up. And nobody else came to my apartment that day.” The informant described in the affidavit was the same man Talley’s camera had recorded knocking on his door, waiting and then leaving. Talley wasn’t home at the time. The account given by the detectives and informant was false. And Talley had the video to prove it.

His access to public records was also critical. Through them he was able to discover patterns of abuse affecting not just him but his fellow citizens.

In the months after his own raid, Talley filed open-records requests for every warrant and affidavit involving the detectives who handled his case. He then expanded out and asked for warrants related to other officers on the drug unit.

In those records was also another important piece of information: the informant's mugshot. Remember the story here about mugshots? The one about how people were arrested for having posted these completely public records, simply because they made the editorial decision about which ones to post based on a profit motive? This story shows why it is so important that they be public records that the public has ready access to. Because with the mugshot Talley was able to figure out what had happened to him and others. A name on a search warrant application is an abstraction; but with the picture he could compare the affidavit to his security camera footage to spot the lies.

Over the ensuing weeks, Talley scoured Facebook and Instagram. He talked to residents of the apartments and the surrounding neighborhood. He started watching the Arkansas courts website for cases that looked similar to his. He eventually found a mug shot of the informant. The man who falsely claimed to have purchased cocaine from Talley is a nine-time felon whose criminal record includes nine convictions for theft and another five for burglary. He has also been convicted for giving a false name to police officers after an arrest, for filing a false police report, and, while behind bars, for writing a death threat to a police officer, forging another inmate’s signature on the threat, and then reporting the threat in exchange for reducing his own charges.

The mugshot also helped him compare notes with other victims, some of whom remembered seeing the informant lurking around the neighborhood.

Talley found Davis’s case late last year on the Arkansas courts site. After contacting Davis, Talley showed him a photo of the informant. “Oh, that was him,” Davis says. “That was the guy who came to my apartment. He has what you might call a unique look. You don’t forget a guy like that.” The informant told the police that Davis sold him cocaine. The police found only pot, a scale, Davis’s gun, bullets and the registration for his gun.

And then there was social media. Not only did it help him figure out what had happened by letting him find posts and pictures from others' affected, but it gave him a forum to speak out about what had happened to him, and to reach out to other affected community members – er, at least until he was censored by Facebook for having posted public information about the state actors who had abused him…

He also continued to use social media to publicize his case and reach out to others who may have been raided. He says he was at one point suspended from Facebook for posting the officers’ identities, photos and contact information, though Talley insists this was all public record.

His First Amendment right to petition the government for redress of his grievances is also what allowed him to sue for the violation of his other rights. The city tried to seal all the records associated with the case, but fortunately a judge refused to allow that impingement of his First Amendment rights to add to the list of constitutional injuries.

In response to the lawsuit, the city’s first move was to ask a judge to seal the search warrants, affidavits and everything else Talley had found — including Talley’s own security camera videos. Laux and Crump fought the motion and won. Talley had obtained all of that information from his own cameras or from public records. The city couldn’t then bar him from sharing or publishing it.

Because Talley's story, and the records evidencing it, are able to remain in public view, we are able to learn about a renegade police force running around one of America's cities, unfettered by the constitutional limitations put on police power. Fortunately knowledge is power, and thanks to the First Amendment we can start to fight back.

Filed Under: 1st amendment, 4th amendment, drug rainds, first amendment, foia, free speech, little rock, little rock police department, roderick talley, video recording