White House Potentially Exploring Executive Order On 'Social Media Bias'

from the the-first-amendment-would-like-a-word dept

The White House may be preparing an executive order for the President, pushing for investigations of "bias" at social media companies. It is not definite, but someone has leaked us a draft two page executive order. We're not releasing the draft because, despite it coming directly from someone in the White House, others have insisted it's not an accurate document, even as the approach to some extent mirrors the announced plans of the DOJ to investigate bias. Another reason we're not releasing the document itself is that we're quite aware of reports saying that there are attempts to find "leakers" in the White House, and one common method of doing so is to put small indicators in documents. We cannot guarantee that this document is not such a document and thus will be reporting on the basic concept of what's in this draft, without revealing the full document.

But, to be clear, if this document is accurate, it would almost certainly lead to a huge First Amendment fight, which it seems likely the companies would win.

Obviously the issue of social media and supposed political bias has been a big topic in DC lately -- including with the President -- despite the near total lack of actual evidence to support these claims. Yes, there is evidence of people being kicked off these platforms... but there is no evidence that the reasons have anything to do with political bias (people of all political stripes have been removed from these platforms). And, yes, there is also evidence that employees at many internet companies may lean one way politically, but that too is overstated and says nothing about how the platforms actually work.

Recently, we noted that the DOJ and various state Attorneys General were talking about using antitrust law against social media companies over bias, and explained in fairly great detail why that would almost certainly run afoul of the First Amendment and a whole long list of Supreme Court cases detailing how the government cannot compel speech of this nature.

And that's where this executive order, as leaked, would almost certainly run into huge First Amendment issues. It tries to hide these behind antitrust claims, saying that it's about ensuring competition and preventing the exercise of market power that "harms consumers, including through the exercise of bias." The Executive Order itself doesn't hide the intent, as "bias in online platforms" is specifically in the title. Basically, the order would task the White House with "investigating" social media platforms for bias and then seek to use antitrust actions (or pass it off to the DOJ or FTC) to punish companies that show loosely defined "bias." The document takes as default that any kind of "bias" on major internet platforms should be taken as anti-competitive (which seems incredibly questionable) and then also requires that various agencies give the President a report on how to "address" social media bias.

I have trouble seeing how this could possibly be constitutional under the First Amendment, as it is, quite explicitly, the government trying to regulate speech, and clearly does not fall into any of the exceptions to the First Amendment. It's possible this executive order will never actually become anything -- perhaps someone in the White House will prevent it from moving forward (it's also clear that the draft I've seen is not complete, as there are still notes about what's being worked on). But the fact that this is even being considered is certainly notable.

I asked Ken White, well known around here as a former Assistant US Attorney and current First Amendment lawyer what he thought of the draft and he noted that the document seemed so weakly put together that he had a hard time believing it was something anyone was seriously considering, though, he noted "with this administration it's very difficult to tell." He also noted that it appeared to be "more posturing than substance" and designed to "preach to the choir" rather than anything serious. As for the substance, he noted that while it asserts that "bias" is a violation of antitrust law, that's not at all accurate:

That’s a distortion and exaggeration. Nothing in the document elaborates or supports it. To the extent antitrust is concerned with bias it’s not the "kick the Nazis off the platform" kind. It's more like a concern about, for instance, Google altering search results to prefer products and services it owns.

Indeed, the general point of antitrust is to deal with when a dominant player is abusing its position to favor its own offerings, not on how it handles general moderation duties. So, while I wouldn't put it past this administration to mock up this kind of executive order as an exercise in thinking through what it can "do" about the exaggerated and misleading claims of "political bias" in search results, I have a hard time believing the administration would bother pushing forward with this idea, and if it actually did get that far that it would have any luck in convincing anyone (who matters) that this was constitutional. That said, if the point is just, as Ken suggested, preaching to the choir, I also wouldn't put it past this administration to push out this executive order just to rile up Trump's most ardent supporters, who continue to scream to the heavens about political bias in search results, despite a near total lack of evidence to support such claims.

Filed Under: antitrust, bias, doj, donald trump, executive order, first amendment, free speech, social media bias
Companies: facebook, google, twitter

EU Continues To Kill The Open Web: Massive Fines For Sites That Don't Censor Within An Hour

from the what-the-hell-is-going-on-in-brussels? dept

The EU really seems quite hellbent on absolutely destroying the open internet. Just as the EU Parliament was voting to approve the EU Copyright Directive, requiring that much of the internet be licensed and curated, rather than open for anyone, the EU Commission decided to move forward with an awful idea that it had first proposed earlier this year: that social media companies must disappear "terrorist content' within one hour.

Back when this was proposed, we pointed out how this was holding companies to an absolutely impossible standard... and it appears that the EU really just doesn't give a fuck, because they're super excited about putting this into practice:

The European Commission proposed new rules on Wednesday that would require internet platforms to remove illegal terror content within an hour of it being flagged by national authorities. Firms could be fined up to 4% of global annual revenue if they repeatedly fail to comply.

Got that? 4% of global revenue. As the article notes, that means if Google fucks up a single download, it could owe $4.4 billion to the EU. Facebook could owe $1.6 billion.

"You wouldn't get away with handing out fliers inciting terrorism on the streets of our cities — and it shouldn't be possible to do it on the internet, either," EU security commissioner Julian King said in a statement.

First of all, leaving aside the (very important!) broad free speech concerns around what counts as "terrorist" content, as opposed to just dissenting content, the statement by Julian King is idiotic. If you want to use that analogy, what the Commission is proposing here is the equivalent of if someone was handing out fliers inciting terrorism on the streets of a city, that the city would then get to seize all the buildings on that street. That's almost exactly what this proposal is stating. If you want to go after people distributing terrorist content, go after the people distributing terrorist content. Don't go after the tools they use to post it. That makes no sense.

And, of course, we already know how this is going to lead to massive and widespread censorship. No company is going to want to risk a fine that massive, and with merely 1 hour to respond, no company will have the capability or context to carefully adjudicate the takedown demands to make sure they are proper and aboveboard. Obviously, they'll just start pulling down content incredibly quickly. Indeed, we've already seen what a mess this kind of rule can create. We've talked about the German law that gives sites 24 hours to takedown "hate speech," and how that's already leading to censorship of political speech and satire. Now switch that to just one hour, with even more drastic consequences.

It is literally insane that anyone could possibly think this is a good idea.

Activists are already pointing out that this proposal has simply ignored its obligation to review how such a law would impact human rights, because apparently if you just wave your hands in the air screaming "terrorists' the EU will toss basic human rights out the window.

At some point you have to wonder if the EU really just wants the internet shut off completely.

Filed Under: censorship, eu commission, social media, takedowns, terrorist content
Companies: facebook, google, twitter

Google Fights In EU Court Against Ability Of One Country To Censor The Global Internet

from the this-is-important dept

For quite some time now we've been talking about French regulators and their ridiculous assertion that Google must apply its "Right to be Forgotten" rules globally rather than just in France. Earlier this week, the company presented its arguments to the EU Court of Justice who will eventually rule on this issue in a way that will have serious ramifications for the global internet.

In a hearing at the EU Court of Justice, Google said extending the scope of the right all over the world was “completely unenvisagable.” Such a step would “unreasonably interfere” with people’s freedom of expression and information and lead to “endless conflicts” with countries that don’t recognize the right to be forgotten.

“The French CNIL’s global delisting approach seems to be very much out on a limb,” Patrice Spinosi, a French lawyer who represents Google, told a 15-judge panel at the court in Luxembourg on Tuesday. It is in “utter variance” with recent judgments.

Even if you absolutely despise everything about Google, the argument of French regulators should be of massive concern to you. France's argument is that if a French regulator determines that some content should be disappeared from the internet, it is necessary for it to be memory holed entirely and permanently, literally calling such deleting of history "a breath of fresh air."

“For the person concerned, the right to delisting is a breath of fresh air,” said Jean Lessi, who represents France’s data protection authority CNIL, told the court. Google’s policy “doesn’t stop the infringement of this fundamental right which has been identified, it simply reduces the accessibility. But that is not satisfactory.”

Where one can be at least marginally sympathetic to the French regulator's argument, it is in the issue of circumvention. If Google is only required to suppress information in France, then if someone really wants to, they can still find that information by presenting themselves as surfing from somewhere else. Which is true. But that limited risk -- which would likely only occur in the very narrowest of circumstances in which someone already knew that some information was being hidden and then went on a quest to search it out -- is a minimal "risk" compared to the very, very real risk of lots of truthful, historical information completely being disappeared into nothingness. And that is dangerous.

The broader impact of such global censorship demands can easily be understood if you just recognize that it won't just be the French looking to memory hole content they don't like. Other governments -- such as Russia, China, Turkey, and Iran -- certainly wouldn't mind making some information disappear. And if you think that various internet platforms will be able to say "well, we abide by French demands to disappear content, but ignore Russian ones," well, how does that work in actual practice? Not only that, but such rules could clearly violate the US First Amendment. Ordering companies to take down content that is perfectly legal in the US would have significant ramifications.

But, it also means that we're likely moving to a more fragmented internet -- in which the very nature of the global communications network is less and less global, because to allow that to happen means allowing the most aggressive censor and the most sensitive dictator to make the rules concerning which content is allowed. And, as much as people rightfully worry about Mark Zuckerberg or Jack Dorsey deciding whose speech should be allowed online, we should be much, much, much more concerned when its people like Vladimir Putin or Recep Erdogan.

Filed Under: censorship, france, global censorship, jurisdiction, right to be forgotten
Companies: google

The First Emojiment: New T-Shirts & More By Techdirt

from the make-no-law dept

Get your First Emojiment gear on Teespring »

You know the words — or at least you should! Introducing the latest line of t-shirts, hoodies, mugs and stickers from Techdirt: our emoji-fied version of the First Amendment to the US Constitution, available now on Teespring. The design is based on the Twemoji icon set, licensed under CC-BY 4.0.

Also, be sure to check out our recently-released Free Speech Pro-Tip gear and all the other great designs in our Teespring store.

Filed Under: emoji, first amendment, free speech

German Court Tells Facebook It Can't Delete Comments, Even Though German Law Says It Must Delete Comments

from the damned-if-you-do,-damned-if-you-don't dept

Earlier this year, we wrote about Germany's free speech suppressing "hate speech" law, which required that social networks remove "hate speech" within 24 hours or face massive fines up to €50 million. Making it even more ridiculous, the law even provided for personal fines up to €5 million for EMPLOYEES at the social networks who were in charge of taking down ill-defined "hate speech."

This, of course, is a recipe for massive censorship. If you are facing fairly massive fines for failing to take down certain speech, you're very likely going to default towards the "take it down, take it down NOW!" side of things. And, indeed, merely 3 days after the law was on the books, a satirical magazine had its Twitter account blocked (no satire for you!). Just a few days later, the ridiculousness of this law became even more obvious, when Twitter deleted a tweet of Heiko Maas, now Germany's Minister of Foreign Affairs (and at the time its Federal Minister of Justice).

Pretty ridiculous, right?

Hold on. It just got more ridiculous. You see, the Higher Regional Court in Munich (the Munich Oberlandesgericht or OLG -- sorta, kinda, not quite like a state appeals court in the US) has now ruled that Facebook cannot delete comments that harm freedom of expression. Facebook had chosen to delete "a controversial statement," by a Bavarian politician (a member of the nationalist AfD party) Heike Themel, saying it violated community standards. But the court determined that Facebook deciding to delete such content was violation of Themel's freedom of expression.

So, uh, good luck to social media platforms in Germany, huh? If they don't remove content reported by users as "hate speech," they (and their employees directly) face massive fines. If they do delete content, they could get hauled into court and told they're violating freedom of expression rights. That seems like a complete no win situation.

Of course, this is just one mid-level regional court in Germany, and another report on this story notes that another regional court (in Heidelberg) just ruled the opposite way, saying that as a private company, Facebook had every right to manage its platforms by its own rules.

While I imagine that this kind of ruling might excite some of the people who have recently been suing platforms in the US over a similar theory (some of whom might already have... let's say... an affinity for historical Germany...), it should actually help demonstrate how absolutely ridiculous these laws are becoming -- both ordering websites to remove content while simultaneously telling them they cannot.

Thankfully, we haven't had the same legal mess play out in the US (and, thankfully, the First Amendment should mostly prevent this from happening), but the larger debate is effectively the same. You have a bunch of people demanding that social media disappear "bad" content, and a bunch of people demanding that social media not disappear content they like. Sometimes, it's the same people. But the end result is literally impossible to deal with.

Filed Under: content moderation, free speech, germany, hate speech, munich, takedowns
Companies: facebook, twitter

Judge Roy Moore Sues Sacha Baron Cohen For Ruining His Immaculate Reputation

from the CAN-I-HAVE-SOME-MONEY-NOW dept

Judge Roy Moore -- perhaps most famous for his (alleged) predilection for jailbait -- is suing entertainer Sacha Baron Cohen for somehow ruining his spotless reputation with the ol' libelslander. Moore is represented by stunt lawyer Larry Klayman, which assures this complaint will be greeted with a heavy sigh by the presiding judge, and that a not-insignificant amount of the billable hours will be eaten up by Klayman getting admonished by the court.

As can probably be inferred without even reading the complaint [PDF], Moore got duped by Cohen to appear on his show, regrets being duped, and thinks Cohen (and Showtime/CBS) should pay him real money for tarnishing his otherwise squeaky-clean reputation. Let's just see what he's asking for…

[...] actual, compensatory, and punitive damages in excess of $95,000,000 USD, as well as attorneys’ fees and costs, and any other relief that this Court may deem just and proper.

Moore, with the assistance of Klayman, figures his appearance on Cohen's new show did nearly $100 million in damage to Moore's reputation -- one pre-sullied by sexual misconduct targeting teenaged girls allegations. Moore estimates his reputation is $95 million worse off, thanks to his inability to vet requests for public appearances.

Here's how all the "defamation" went down, according to the complaint.

In order to fraudulently induce Judge Moore and Mrs. Moore to travel to Washington, D.C., where filming was to and did take place, and where the majority of acts pled herein occurred, on or about February 14, 2018, Defendant Cohen and his agents falsely and fraudulently represented to Plaintiff that Yerushalayim TV – which does not actually exist - was the producer and broadcaster of the show that Judge Moore would appear on, instead of the actual network that the show that later appeared on Showtime. In addition, Defendant Cohen and his agents falsely and fraudulently represented that Judge Moore and Mrs. Moore were both being invited to Washington, D.C., for Judge Moore to receive an award for his strong support of Israel in commemoration of its 70th anniversary as a nation state. This ceremony, and presentation of this award, Defendant Cohen falsely and fraudulently represented was to occur during the interview.

Somehow this is Cohen's fault (and by extension, his co-defendants' fault -- CBS and Showtime) even though Moore admits he did nothing to ensure he wasn't being led astray by a nonexistent television station.

Had Judge Moore and Mrs. Moore known that Defendant Cohen had fraudulently induced Judge Moore into this interview, which as a “set up” to harm and thus damage Plaintiffs and the rest of their entire family, Judge Moore would not have agreed to appear. Plaintiffs relied on and had reason to rely on Defendant Cohen’s and his agents’ representations including Defendants Showtime and CBS, which he was led to believe were truthful and he had no reason to doubt.

As Cohen has proven time and time again, nothing drops public officials' guard faster than appealing to their ego. Cohen fronted a nonexistent production company and offered Moore an award for his lifetime of service to Israel. Having been properly flattered, Moore never thought to question why he was being given an award for something he's not particularly known for. Nothing in his Wikipedia page or bio suggests he's ever had much interest in Israel, beyond the usual affinity sported by fundamentalists who refer to it as the "Holy Land" in passing.

This point is reiterated in numerous paragraphs, as if being too stupid to question bizarrely-tangential generosity out of nowhere was an actionable tort.

Then the complaint gets to the actual defamation allegations. And they're quite the read. A shot for every "false" or "fraud" in this lawsuit will see you hospitalized for alcohol poisoning by the 10th page.

Defendant Cohen’s character falsely and fraudulently introduced a false and fraudulent “device” supposedly invented by the Israeli Army to detect pedophiles. During the segment, Defendant Cohen’s “device” – as part of the false and fraudulent routine – purports to detect Judge Moore as a sex offender, thus defaming him.

Hahaha it's almost as if someone were making some crude commentary on the sexual misconduct allegations against Judge Moore. You know, the allegations about pedophilia and sex offending. It was in all the papers. This -- THIS! -- says Klayman, is defamation. And he says it as only Klayman can: by providing the defendants a defense.

This false and fraudulent portrayal and mocking of Judge Moore as a sex offender, on national and international television, which was widely broadcast in this district on national television and worldwide, has severely harmed Judge Moore’s reputation and caused him, Mrs. Moore, and his entire family severe emotional distress, as well as caused and will cause Plaintiffs financial damage.

Let's give Ken White/Popehat the floor for a moment:

By adding "mocked" to that sentence, Klayman is beclowning himself, which is quite a feat for someone who comes pre-beclowned.

He's basically saying "the utterly obvious and inevitable defense to this is correct, and here I am confirming it."

Only something that can reasonably be taken as a provable statement of fact can be defamatory. Mockery is by definition not defamatory -- like ridicule, insult, etc. When a public figure is at hand, it's also not, by definition, intentional infliction of emotional distress.

On and on the complaint goes about "reckless" and "malice" and "defamation per se" and all of it doesn't matter because the defense is right there in the accusations. This was commentary on Roy Moore's pre-existing reputation, which was already in the gutter thanks to numerous accusations directly on point with a fake Mossad tool's "sex offender" determination.

The downside of this case is that if it survives the first motion to dismiss, it's going to chew up some time and cash. It was filed in the DC federal court, which has already decided it doesn't need to apply Washington, DC's anti-SLAPP law at the federal level. This means the case might go on longer than it needs to, even though it's crystal clear Moore's just trying to exact litigious revenge for allowing himself to be suckered in by a little flattery.

Filed Under: anti-slapp, dc, defamation, larry klayman, roy moore, sacha baron cohen, slapp suits
Companies: cbs, showtime

A Federal Anti-SLAPP Law Would Make CDA 230 More Effective

from the protecting-free-speech dept

“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Dombrowski v. Pfiser—Justice Brennan

Lawsuits against institutions that transmit speech, such as newspapers and blogs, impose costs that those institutions act to avoid—if necessary, by preemptively censoring any third-party speech that increases their exposure to legal liability. The purpose of Section 230 of the Communications Decency Act is to prevent this collateral chilling effect, specifically on internet users’ speech. CDA 230 enables the dismissal before trial of suits seeking to hold websites of the user-driven content model, such as Twitter and YouTube, liable for the unlawful speech or conduct of their users. This law is based on a policy judgment that, if held liable for all illegal content within millions of online posts, websites would reduce the amount of speech they transmit and, erring on the side of avoiding legal costs, would censor some lawful speech.

But even unsuccessful suits impose costs—after all, defendants who dismiss a suit before trial on CDA 230 grounds still must hire a team of expensive lawyers to secure dismissal. An empirical study in 2012 by Professor David Ardia at the University of North Carolina determined that the average CDA 230 case terminated on a motion to dismiss takes almost a year to reach dismissal. Ardia noted, plausibly, that litigating for this length of time entails substantial defense-side costs. In order to mitigate the collateral chilling effect of these pre-trial costs, defendants in CDA 230 cases need a fee-shifting mechanism that allows them to impose their costs on plaintiffs whose cases have faltered at the motion to dismiss stage. Given likely political obstacles to adding a fee-shifting provision to CDA 230 itself, a good way to supply this mechanism is through federal anti-SLAPP legislation.

Anti-SLAPP Laws

State anti-SLAPP laws serve a similar, but broader purpose than CDA 230: they provide for the expedited dismissal of meritless suits seeking to sanction the exercise of speech—“Strategic Lawsuits Against Public Participation,” or “SLAPPs,” in both an online and an offline context. The object of a such a meritless suit is often to silence someone or to force them to spend money, and not necessarily to obtain a favorable result at trial. A classic example of a SLAPP is a defamation lawsuit filed by a public figure against a newspaper in response to a critical opinion piece.

To invoke the protection of an anti-SLAPP law, a defendant must go through two steps. First, she must show that a suit is in response to activity on the part of the defendant that falls in one or several categories of First Amendment-related activities. Every anti-SLAPP law is worded differently, but many specify that they protect statements on “matters of public interest,” “issues of public concern” or something similar. Second, a defendant must show, in a promptly organized pre-trial proceeding, that the suit is meritless. And unlike CDA 230, most anti-SLAPP statutes impose the defendant’s costs on the plaintiff upon dismissal.

Currently, there is no federal anti-SLAPP law. As a result, there are important gaps in anti-SLAPP protection. For example, an anti-SLAPP defense is not available to defendants faced with meritless suits involving federal law claims. Additionally, plaintiffs can circumvent anti-SLAPP protection through “forum-shopping”—that is, by strategically bringing a suit in a state with a weaker anti-SLAPP law when bringing the suit in a state with a stronger anti-SLAPP law also would be proper. Federal anti-SLAPP legislation can prevent both of these tactics, not only in a CDA 230 context but with respect to frivolous anti-speech litigation generally.

Combining CDA 230 and Anti-SLAPP Protection in State Court

In some state courts, a defendant like YouTube can combine CDA 230’s substantive protection against liability for third-party content with an anti-SLAPP law’s fee-shifting feature. A defendant in such a case argues that a suit targeting the operator of a website for the speech or conduct of its users is meritless in light of the applicability of a CDA 230 defense and thus should be dismissed under the anti-SLAPP law. And under most anti-SLAPP statutes, the plaintiff must then compensate the defendant for her costs.

The combined application of the two defenses has occurred several times in California state courts. In Albert v. Yelp, for instance, a plaintiff-side consumer lawyer sued Yelp for defamation over negative reviews of her firm. Lenore Albert, the proprietor of a small firm in Huntington Beach, California, advertised herself as a “consumer advocate” fighting on behalf of “the people.” An employee of the firm became upset with Albert after she missed a filing deadline in a case brought on behalf of the employee’s friend. This employee organized a campaign among her friends to lower the firm’s Yelp rating by posting reviews characterizing Albert as an incompetent attorney who misses deadlines. Albert brought a defamation suit against the employee, her friends, and, most importantly for the purpose of obtaining a measurable award of damages, against Yelp itself.

Yelp disposed of the suit with an anti-SLAPP motion. In the first step of its anti-SLAPP analysis, the court noted that whether a lawyer presenting herself as a crusader for “the people” was living up to this self-description was a matter of public interest squarely within the purview of anti-SLAPP protection. Second, the court determined that the suit was meritless, as CDA 230 unambiguously protects Yelp from liability for defamation committed by a consumer reviewer. The case was dismissed and, in accordance with California’s anti-SLAPP statute, Yelp recovered its costs.

Closing Loopholes in This Combined Defense Through Federal Anti-SLAPP Legislation

Plaintiffs, however, can avoid this fortified combination of defenses in at least two ways. First, because state anti-SLAPP rules do not apply to federal claims, a plaintiff bringing a harassing lawsuit can bypass a state anti-SLAPP law by pleading a federal claim rather than a similar state law claim. For example, in 2016, Resolute Forest Products, a Canadian logging company, brought a lawsuit against Greenpeace in response to a media campaign accusing the company of unsustainable logging practices. Resolute alleged, among other claims, that Greenpeace violated both state and federal anti-racketeering laws by “creat[ing] and disseminat[ing] false and misleading reports and information…for the unlawful purpose of soliciting fraudulent donations from the public-at-large.” Resolute’s federal racketeering claim was equivalent to its state racketeering claim and overlapped with its state law defamation cause of action, which provides relief for reputational harm from false statements. A California federal court dismissed all claims against Greenpeace but only applied the anti-SLAPP law’s fee-shifting feature to the state law claims. Thus, Resolute partly accomplished its intended objective of forcing Greenpeace to spend money defending itself it court.

Second, a plaintiff can avoid state anti-SLAPP protection by strategically filing a suit in a jurisdiction with a weak anti-SLAPP law. For example, Washington Redskins owner Daniel Snyder responded to an article in a Washington D.C. newspaper criticizing Snyder’s management and ownership practices by threatening to sue a New York hedge fund that owned the paper. Washington, D.C. had at the time and continues to have a stronger anti-SLAPP law than New York. In a letter to the hedge fund, Snyder’s attorney candidly admitted the abusive motivation of the suit, writing “We presume defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper.” Snyder ultimately dropped the suit.

A federal anti-SLAPP law would close these loopholes in anti-SLAPP protection. Federal claims would be subject to federal anti-SLAPP rules. And a federal anti-SLAPP law can contain a removal provision that allows defendants to transfer a suit to federal court, which would prevent forum-shopping. More specifically, federal anti-SLAPP legislation would maximize internet users’ protection from collateral censorship by making the anti-SLAPP fee-shifting mechanism available to defendants in a broader range of CDA 230 cases.

Limitations to Anti-SLAPP Legislation’s Enhancing Effect Upon CDA 230

While federal anti-SLAPP legislation undoubtedly would enhance CDA 230, there are certain gaps in both CDA 230 and anti-SLAPP protection that would not be mitigated by combining the two at the federal level. First, CDA 230 immunity can be narrowed by statutory amendment or judicial interpretation, and any such development simultaneously reduces the scope of anti-SLAPP protection in a CDA 230 context. Second, state anti-SLAPP jurisprudence suggests that a federal anti-SLAPP law would not apply in all CDA 230 cases.

A federal anti-SLAPP law would neither add to nor subtract from substantive CDA 230 immunity, however Congress and the courts independently choose to define this immunity. An anti-SLAPP defense can only be invoked against a meritless suit, and a complaint that pleads around the bounds of CDA § 230 immunity potentially has merit. Any legislation creating exceptions to CDA 230 immunity, such as the recently enacted Allow States and Victims to Fight Online Sex Trafficking Act, would simultaneously limit anti-SLAPP protection. The same is true of any judicial doctrine reducing the scope of CDA 230 immunity. For example, in the wake of Fair Housing Council of San Fernando Valley v. Roommates.com, which established that website operators can be held liable for “materially contributing” to unlawful third-party content, a number of lower courts have permitted plaintiffs to overcome a motion to dismiss with mere allegations that the defendant has played a role in the creation of content. A court would permit a plaintiff to overcome an anti-SLAPP motion on the same basis.

Additionally, courts likely would define limitations to anti-SLAPP protection that would preclude a federal anti-SLAPP defense in some CDA 230 cases. As explained, under anti-SLAPP statutes, before a court determines whether a claim is meritorious, the court typically must make a threshold finding that a legal dispute involves a matter of public interest. Defendants’ anti-SLAPP motions are sometimes defeated because the subject matter of the speech at issue is not “of concern to a substantial number of people,” but rather is something of interest only to the litigants or to a small subset of the public.

Inevitably, courts will find that some claims that lack merit on account of the applicability of a CDA 230 defense nevertheless do not qualify for anti-SLAPP protection because they do not touch on a matter of public concern. For instance, California courts sometimes distinguish online consumer reviews that involve simply an individual customer’s assessment of a vendor—a purportedly private matter—from reviews that provide additional commentary on issues of interest to the public, such as advice on how to choose a vendor within a certain industry. While CDA 230 typically protects a defendant consumer review website from liability for an unlawful consumer review, anti-SLAPP protection at the state level does not apply in all such cases. More generally, there is an imperfect overlap between CDA 230 immunity and anti-SLAPP protection. Assuming that a federal anti-SLAPP statute would mimic the language of broad state anti-SLAPP statutes, a similar imperfect overlap with CDA 230 likely will develop in jurisprudence interpreting a federal anti-SLAPP statute.

Conclusion

Although CDA 230 has come under criticism recently pertaining to some of its specific applications, it is important to sustain CDA 230’s central role in enabling the modern system of internet discourse and commerce. To accomplish more fully its indispensable purpose of protecting internet users from the threat of collateral censorship, this legal linchpin of the modern web needs to be supplemented with a fee-shifting provision. Passing federal anti-SLAPP legislation is an effective means to provide this crucial support.

Julio Sharp-Wasserman is a third-year Columbia law school student and Notes Editor for the Columbia Science and Technology Law Review, which will be publishing his student note on CDA 230 this winter.

Evan Mascagni is the Policy Director for the Public Participation Project, a non-profit organization working to pass federal anti-SLAPP legislation in Congress. PPP also assists individuals and organizations working to pass anti-SLAPP legislation in their states.

Filed Under: anti-slapp, cda 230, censorship, federal anti-slapp law, first amendment, free speech, intermediary liability

Flordia AG Somehow Pivots To The Danger Of Video Games After The Latest Florida Shooting

from the facepalm dept

There is a long tradition in conservative politics for blaming video games whenever a mass shooting is carried out by a relatively young person. It's a monumentally stupid argument, given the complicated and twisted nature of mass shootings and the motivations behind them. But, since policy and politics are now offered merely in soundbite formats, the end result of a mass shooting is for every person to retreat to their familiar corners and make lots of noises that ultimately accomplish nothing but stagnation.

The mass shooting that happened in Florida recently could have been a different story. While it indeed happened at a video game tournament, the gamers involved were playing Madden, not some violent shoot 'em up. If playing a football video game makes people angry enough to shoot people, just wait until those decrying video game violence turn on their TVs on Sunday and realize that there are actual people playing the same game for real. There was no indication anywhere that this shooting was carried out by anything other than an individual that likely had some severe mental problems and access to weapons. And, yet, somehow Florida Attorney General Pam Bondi addressed this latest shooting by pivoting directly to the dangers of kids playing video games and the predators that will harm them.

With the strength of a long history of conservative handwringing over the impact of violent video games on children’s minds to her back, Bondi went down a different road, instead warning parents that “predators” might find children through location services on video games.

Here is video of the interview in question.

If all of that sounds completely insane to you, you're not alone. If you cannot view the video above, it consists of Bondi somehow, in the wake of a public mass shooting that occurred in her own state, warning parents that predators out there are using location tools in video games like Minecraft to hunt our children down and kill or otherwise hurt them. What any of this has to do with the shooting that just occurred is anyone's guess.

Bondi went on to warn that parents should check the settings on the games their children are playing, because “predators can find you based on location services.” According to Bondi, “The scary thing is they could find out where your 13-year-old is sitting at home playing that game”—not, presumably, that almost anyone could have a gun anywhere, including at a pizza restaurant or a video game tournament. Bondi conveniently failed to mention that the two men who died in this incident were 27 and 22 years old.

“I know Minecraft, we’ve talked about that in the past, I don’t know about Fortnite,” Bondi also said. I have no idea what she’s talking about, and have reached out to Microsoft to clarify whether Minecraft does indeed feature any location services options. From what I can tell looking at my version of Fortnite on Nintendo Switch, there is no option that would reveal my location to other gamers.

So what the hell is all of this? Is it just a staunch conservative politician abdicating her responsibilities to push back against the familiar attack on gun rights that occurs after mass shootings like this? Is this sort of pivot to, in some way, any way, blame video games in the wake of shootings simply some Pavlovian reflex at this point? Or, given that Bondi has made waves and perhaps history as the only sitting AG that also occasionally fills in as a host for a cable news network, is she instead simply auditioning for her next career move?

Pam Bondi is still the attorney general of Florida, at least for another four months. But last week Bondi had a different job: co-host of Fox News’ The Five. She subbed on the news talk show not once, not twice, but three times, appearing as a panelist Wednesday through Friday.

The situation was so unprecedented for a sitting elected official that Bondi first sought guidance from the Florida Commission on Ethics, the government body that oversees conduct of public officials. Tallahassee lawyer Richard Coates “spoke to the Commission on behalf of the Attorney General” prior to appearing on the show, her spokeswoman Kylie Mason said.

You know... it's the auditioning thing. And I'll be damned if that isn't yet another gross ingredient in this sickening bullshit pie that is somehow blaming Minecraft for a mass shooting at a Madden tournament.

Filed Under: blame video games, florida, football, guns, pam bondi, school shootings, video games

Billionaire Steve Wynn, Who Once Tried To Kill Nevada's Anti-SLAPP Law, Loses Defamation Case Under That Law

from the now-you-see-why... dept

Back in 2015, we wrote about some apparent backroom dealing in Nevada, in which the legislature seemed poised to get rid of that state's very good and thorough anti-SLAPP law. As a reminder, anti-SLAPP laws are designed to stop an unfortunately common practice of wealthy individuals and companies from suing critics and reporters for defamation, even though the defamation cases themselves had no chance. The plaintiffs knew that merely dragging the defendant to court would be costly in terms of time, money and general stress. Anti-SLAPP laws were a way to deal with that unfortunately common practice usually by (1) putting the immediate burden on the plaintiff to show a likelihood of success and then dismissing the case quickly if they fail to do so, (2) halting the expensive and time-consuming discovery process, and (3) often making the plaintiffs pay the defendants' legal fees. The idea is that this is a deterrent to frivolous lawsuits, while leaving legitimate defamation lawsuits unharmed. As we've pointed out for years, unfortunately, only about half of the states have such anti-SLAPP laws, of varying quality, and there is still no federal anti-SLAPP law.

In 2013, Nevada passed one of the best anti-SLAPP laws in the country. But, by 2015, there was an effort underway to throw it out. Nevada-based lawyer, Marc Randazza, pointed out that it appeared that billionaire Steve Wynn was a driving force behind the effort to kill Nevada's anti-SLAPP law, perhaps in response to having recently lost a defamation lawsuit in California, thanks to California's own anti-SLAPP law. Thankfully, that effort failed.

And now the National Law Review is pointing out that Wynn has lost yet another defamation lawsuit, under the very Nevada anti-SLAPP law that he was rumored to be seeking to get rid of a few years back. National Law Review has the full story in which Wynn sued the Associated Press and one of its reporters, Regina Garcia Cano.

After the Las Vegas Metropolitan Police Department (LVMPD) in February released a public statement describing allegations by two women that Mr. Wynn had sexually harassed or assaulted them, AP reporter Regina Garcia Cano filed a public records request. Copies—redacted to protect information that would have identified the two alleged victims—were produced by the LVMPD to Ms. Cano. The AP published Ms. Cano's report summarizing the two records—both of which concerned alleged incidents that happened in the 1970s—and Ms. Cano included the LVMPD's statements that it could not investigate the allegations because of Nevada's 20-year statute of limitations, but that it had passed to Chicago authorities a report concerning the incident alleged to have occurred there. That report included both a description of the alleged assaults and the claim by the alleged victim that she had later given birth to Mr. Wynn's child in unusual circumstances in a gas station restroom—a claim Ms. Cano paraphrased in her article.

Mr. Wynn asserted defamation based only on the portion of the article summarizing the incident that was alleged to have taken place in Chicago, contending that the complainant was "delusional" and that the AP's failure to quote verbatim the description of the alleged childbirth scenario rendered the news article unfair because readers would have found the allegation incredible if they had read the entire police case report.

The court, however, did not buy it according to the National Law Review. Unfortunately, Nevada's District Court doesn't post court documents online, so we don't have the full ruling, but the NLR notes that, using Nevada's anti-SLAPP law, "The court held that the challenged news report was absolutely privileged as a fair and accurate summary of a publicly available police case report reflecting a woman's allegation that Mr. Wynn had sexually assaulted her years earlier."

Of course, Wynn's attorney is quoted in the article saying that they will appeal this ruling, once again keeping the AP and Ms. Cano in court for much longer. The ruling does entitle the AP to legal fees, and those legal fees seem likely to increase as the appeal continues. But if the goal of the process is just to keep the AP and Cano in court as long as possible, that might not be of that much concern. Still, this is why these kinds of anti-SLAPP laws are so important, why we need more of them, and why they need to be protected from those who seek to use the court system to harass and burden critics and reporters.

Filed Under: anti-slapp, bullying, defamation, first amendment, free speech, nevada, regina garcia cano, steve wynn
Companies: ap

Trump's Anti-press Rhetoric Is Dangerous, But His Actions Are Worse

from the shall-make-no-law dept

In a coordinated response to Trump's incessant attacks on the press, more than 300 news organizations joined together last week and published editorials about the important role of a free press.

The effort is led by the Boston Globe, who called for editorial boards of publications across the country to publish their own editorials defending—in their own words—the importance of press freedom. Participating publications include outlets big and small, from the New York Times to small, local, and independent papers.

Trump has called the press "enemy of the American people," and said that journalists "don't like our country." He responded to the editorials in a predictably petty manner. He has also vowed to revoke broadcast licenses over coverage he didn't like, and has threatened to sue critical news organizations and journalists. And, of course, he engages in constant Twitter diatribes about "fake news."

The president's verbal attacks on the press are certainly appalling, but his rhetoric gets an outsized amount of attention, when his administration's actions against press are much worse. They deserve just as much condemnation as his tweets.

Here are four actions the Trump administration has taken that are more dangerous to media and the First Amendment than anything Trump has said:

1. Escalating the war on whistleblowers and spying on journalists

Trump inherited Obama's unprecedented prosecution of whistleblowers who give information to the media, and the Trump administration has escalated its investigations and prosecutions of leaks. Last year, the Daily Beast reported that leak investigations were up 800% under Trump's Attorney General Jeff Sessions, and in the first 18 months of his administration they've already brought four prosecutions. All leak investigations—whether they target whistleblowers to provided information to journalists or other entities—are a serious press freedom threat.

Reality Winner became the first whistleblower prosecuted by the Trump administration for leaking information to the press. She was charged with, and eventually plead guilty to, violation of the archaic Espionage Act for making Russian hacking attempts of U.S. election infrastructure public. For her act of public service, she was sentenced to 63 months in prison—the longest sentence a leaker has received in federal court.

Trump's Justice Department also secretly obtained a year's worth of phone and email records of New York Times reporter Ali Watkins as part of its investigation into her alleged source—in seeming direct violation of Justice Department guidelines. While this is the first publicly known instance of the Trump administration directly targeting a journalist with surveillance, there may be many others.

And beyond whistleblowers who leak information to the press, the Trump administration has cracked down on freedom of information. Trump has forced senior White House staff to sign non-disclosure agreements, and conducted unofficial leak investigations in the White House. While the NDAs are likely unenforceable, this could chill and intimidate government employees who may have blown the whistle into silence.

2. Potential prosecution of publishers

The New York Times reported in May 2017 that Trump began a conversation with then-FBI Director James Comey by "saying that Mr. Comey should consider putting reporters in prison for publishing classified information." While it's unclear if he has privately kept pushing the FBI and DOJ to take such actions, there's ample evidence that they might try to do just that with WikiLeaks.

Top Trump officials have vowed to prosecute WikiLeaks for publishing documents. If the Department of Justice brings charges against WikiLeaks or Julian Assange for their work, it would open any news organization that reports on or publishes classified information to prosecution, too. Attorney General Jeff Sessions even refused to rule out using the precedent of prosecuting WikiLeaks against other news organizations.

With reports indicating that Assange will soon be kicked out of the Ecuadorian embassy in London, CNN has reported that "according to US officials, charges have been drawn up relating to previous WikiLeaks disclosures of classified US documents."

Regardless of what one thinks of Assange, everyone who cares about the press' ability to publish leaks should loudly condemn any attempt to prosecute WikiLeaks.

3. Targeting immigrant journalists with deportation threats

Last December, immigration officials arrested a Mexican journalist and his son who had sought asylum in the United States after being threatened by the Mexican military. He was detained for more than seven months. Internal ICE emails strongly suggest that Emilio Gutiérrez-Soto was targeted for arrest in retaliation for his criticism of United States immigration policy.

Gutiérrez-Soto isn't the only journalist targeted by ICE for his First Amendment protected speech. Manuel Duran, a reporter for a Spanish language paper in Memphis, was arrested while covering a protest. Although all charges against him were quickly dropped, he was transferred to ICE custody, where he has remained detained without charge and could be deported at any time. Duran's attorneys say it was his critical coverage of law enforcement that led the government to target him. ICE has also been accused of targeting activists who are accused of being publicly critical of Trump's immigration policies too.

Gutiérrez-Soto and Duran both came to the United States because they were threatened in their home countries. Their work, and criticism of cruel law enforcement agencies like ICE, is critical, and it's a huge press freedom threat that the United States government retaliates against their speech by detaining them.

4. Threatened journalists with decades in prison for covering protests

On Trump's Inauguration Day, over 200 people—including protesters, legal observers, medics, and journalists—were swept up in an indiscriminate arrest for being present at a protest. Among them were at least nine journalists doing their jobs. And while charges against seven were dropped quickly, Trump's Department of Justice targeted two— both independent journalists—with felony charges.

Alexei Wood and Aaron Cantú faced outrageous charges that carried the possibility of approximately 60 and 10 years in prison respectively. While charges against both were eventually dropped after the Justice Department's case seemed to fall apart, their cases are not clearly victories.

The J20 prosecutions will undoubtedly have chilling effects on press freedom as well as political speech and protest. Trump's Department of Justice has sent a disturbing precedent of targeting the press for reporting on a demonstration, and endangering its fundamental ability to make newsworthy political events public.

Trump's rhetoric and his administration's legal actions are both abuses of power and comprise assaults on press freedom. But beyond his tweets, vague libel threats, and baseless fake news accusations, the Trump administration poses a very real threat to press freedom, and has taken steps that have made critical reporting materially more dangerous in the United States. It's never been more important for news organizations to speak up in defense of their important work.

Reprinted from the Freedom of the Press Foundation

Filed Under: free speech, journalists, leaks, sources, whistleblowers