Court Dismisses Defamation Lawsuit Over Steele Dossier

from the slappity-slapp-slapp dept

You may have noticed that an awful lot of news broke yesterday concerning a wide variety of legal cases all touching on the President. Most of the coverage, of course, went to the two big cases: the guilty verdict against former campaign chair Paul Manafort and the guilty plea by former Trump personal lawyer Michael Cohen. There were some other cases with breaking news as well, including a judge in New York rejecting Trump's attempt to dump a lawsuit filed against his private security team for apparently beating up some protesters. Also, in a (frankly, very weak) defamation lawsuit filed by former Apprentice contestant Summer Zervos, apparently Trump has refused to submit to discovery requests, leading Zervos' legal team to file a motion to compel him to respond.

Most of those cases don't cover the kinds of things we usually talk about (the defamation case being the exception -- but at this stage, there really isn't that much worth commenting on). However, there was yet another case loosely involving the President that is something we'd talk about and which concluded late Monday (though, the news broke on Tuesday as well). And that involved a defamation case filed by three Russians against Christopher Steele, author of the so-called "Steele Dossier." Back in October of last year, three Russians, Mikhail Fridman, German Khan and Peter Aven, who are all involved with Alfa-Bank, sued Fusion GPS and its founder Glenn Simpson in federal court for defamation. That case is still waiting for a ruling on both a Motion to Dismiss and an Anti-SLAPP Motion.

However, while all of that was going on, the same three Russians filed a very similar case in the DC Superior Court (the equivalent of a state court, rather than federal court). That case was filed in April of this year, and while the federal court is still dilly dallying around on it, the state court dismissed the case on anti-SLAPP grounds (which rendered a related Motion to Dismiss moot.).

As we've discussed in the past, unfortunately, DC federal courts have decided that DC's (decent) anti-SLAPP statute does not apply in federal court (which suggests the anti-SLAPP motion in the federal case may fail, even if the Motion to Dismiss may succeed), but it has always applied in DC's local courts. And here, the judge, Anthony Epstein, applied it in a pretty straightforward manner to decide that the Russians have no case. Like most anti-SLAPP laws, which are designed to stop bogus defamation lawsuits quickly, DC's shifts the burden to the plaintiffs early on, requiring them to establish a likelihood of success in their claims in order for the case to move forward.

For that to happen, the Russians needed to show evidence that Steele's statements about them in the dossier were false, damaging and done with actual malice (which means Steele would have had to known they were false, or done so with reckless disregard for the truth). This is a pretty high bar. Rather than just do so, the Russians tried a different strategy, which tried to attack the applicability of the anti-SLAPP law in the first place:

Plaintiffs make four arguments: (a) Defendants cannot seek protection under the Anti- SLAPP Act because they are not entitled to any protections under the First Amendment; (b) Defendants do not make a prima facie case under the Act that Plaintiffs' claims arise from an act in furtherance of the right of advocacy on issues of public interest; (c) Plaintiffs have shown they are likely to succeed on the merits; and (d) Plaintiffs are at least entitled to targeted discovery to enable them to defeat the motion.

The court buys exactly zero of these four arguments. Claiming that Steele doesn't get First Amendment protections because he's not a citizen is a clear non-starter. That's not how the First Amendment works:

The Act does not explicitly limit its protection to activity that is also protected by the First Amendment, and indeed the Act's legislative history indicates that the Council intended the Act to apply more broadly. In addition, by its terms, the Act does not limit its protections to U.S. citizens or entities. Although Plaintiffs argue otherwise... the plain language of DC. Code § 16- 5502(a) indicates that any party can file a special motion to dismiss. Reading an implied limitation to District residents into the Act would be contrary to the purposes of the Act and the First Amendment to provide broad protection for speech on issues of public interest (as the Court discusses in the next paragraph). In addition, Plaintiffs have not cited, and the Court is not aware of, any case holding that the defenses that a defendant in a defamation case may assert under D.C. law or the First Amendment depend on whether the defendant is a U. S. citizen or entity.

Plaintiffs contend that even if Defendants' speech involves issues of public interest in the United States, it is unprotected by the First Amendment because Mr. Steele is not a US. citizen or resident and Orbis is not a U.S. company. However, advocacy on issues of public interest has the capacity to inform public debate, and thereby furthers the purposes of the First Amendment, regardless of the citizenship or residency of the speaker. The First Amendment protects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times v. Sullivan, 376 US. at 270. Constitutional standards for defamation cases have been developed to safeguard the "important societal interest in vigorous debate over matters of public concern protected by the First Amendment." See Mann, 150 A.3d at 1241. Moreover, the First Amendment "guarantees are not for the benefit of the press so much as for the benefit of all of us." Time, Inc. v. Hill, 385 US. 374. 389 (1967). "It is now well established that the Constitution protects the right to receive information and ideas." Kleinclienst v. Mandel, 408 US. 753, 762-63 (1972) (citations and quotations omitted). As a result, the interest of US. citizens in receiving information that the First Amendment protects does not depend on whether the speaker is a US. citizen or resident.

The court then goes on to point out that even if the above wasn't true, it still wouldn't matter because Steele clearly had close ties to the US. He was hired by a US company to produce the document, and was in the US when he shared the document with the media, and he regularly did other work in and around Washington DC.

As for the second attack, that Steele failed to show that this was an issue of public interest, the court also isn't buying it, because it's obvious nonsense (the "CIR" referred to here stands for "Company Intelligence Reports," a bunch of which made up what's now called the Steele Dossier, and CIR 112 is the one that discusses the Russian plaintiffs and Alfa-Bank):

The Steele Dossier as a whole plainly concerns an "issue of public interest" within the meaning of § 16-5501(3) because it relates to possible Russian interference with the 2016 presidential election. The Steele Dossier generated so much attention and interest in the United States precisely because its contents relate to active public debates here. See Waldbaum, 627 F.2d at 1296-97 (courts "may not question the legitimacy of the public's concern" to avoid becoming "censors of what information is relevant to self-government") (quoting Supreme Court cases). Plaintiffs themselves "readily agree that the 2016 US. Presidential election was of public interest." ... A key part of Plaintiffs' case is that CIR 112 implicitly alleged that Plaintiffs aided "the Kremlin's interference in the 2016 US. Presidential election," and Plaintiffs cannot contend both that Defendants in CIR 112 accused them of cooperation with Russian interference in the election and that these statements did not involve an issue of public interest in the United States. Plaintiffs own contentions therefore establish at least a prima facie case that Defendants' allegedly defamatory statements involve a matter of public interest.

Moreover, CIR 112 expressly discusses Russian foreign policy toward the United States and President Putin's advisors on Russia-U.S. policy, and these too are issues of public interest within the meaning of Contrary to their argument that Defendants defamed them by accusing them of complicity in Russian interference with the 2016 US. presidential election, Plaintiffs argue that CIR 112 does not relate to an issue of public interest because it does not mention any presidential candidate by name or explicitly address the 2016 presidential election.... However, involvement of Russian international businessmen in Russian foreign policy, specifically including Russian foreign policy toward the United States, involves an issue of public interest in the United States, regardless of whether it relates to a particular election.

Finally, we get to the actual attempt to get past the anti-SLAPP and present evidence of a likelihood of success on the merits. That did not go well.

Plaintiffs have not carried their burden because they do not offer evidence that a reasonable jury could find to be clear and convincing proof that Defendants knew that facts stated in, or reasonably implied by, CIR 112 were false or that they published CIR 112 with reckless disregard of the falsity of these stated or implied facts.

In other words: no actual malice, no defamation, go home. While the Russians tried to come up with a formulation that showed actual malice, the court, correctly, rejects it. First, they claim that some of Steele's conjecture had no support, but the court points out that conjecture is protected by the First Amendment and not actionable anyway. Then, they claim that Steele didn't include supporting facts. But, again, that's not enough to show actual malice:

Plaintiffs do not offer any evidence that Defendants knew, or recklessly disregarded substantial information, that no conceivable possibility existed that Plaintiffs were involved in any such Russian interference. The failure to include supporting facts does not support a reasonable inference by clear and convincing evidence that Defendants knew the statements were false or acted in reckless disregard to their falsity: lacking supporting information is different from having opposing information; and although lack of evidence may establish negligence, negligence "is constitutionally insufficient to show the recklessness that is required for a finding of actual malice."

Then, they try to claim that it was "reckless" for Steele to share the Dossier, but that's not what reckless disregard means in the actual malice standard. The court spells out what they failed to show... and even points out other public information calling into question Alfa-Bank's alleged involvement in corruption (this, of course, does not bode well for claims about corruption being defamatory)

Plaintiffs do not offer evidence that Mr. Steele in fact had subjective doubts or recklessly disregarded information about its falsity, or that Defendants had obvious reason to doubt the source described in CIR 112 as a "trusted compatriot" of a "top level Russian government official." See Bank, 387 F. Supp. 2d at 1253-54 (a publisher does not have a duty to corroborate even when a single source of potentially libelous material is a person of questionable credibility); St. Amant, 390 US. at 733 ("Failure to investigate does not in itself establish bad faith"); see Gertz v. Robert Welch, 418 US. 323, 332 (1974) ("mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth"). Moreover, the information in the Steele Dossier about corrupt payments to Russian public officials was consistent with other information in the public domain: "Although Alfa Bank has developed a reputation in the international community as one of the most respected Russian financial institutions, Aven and Fridman have been dogged by allegations of corruption and illegal conduct." OAO Alfa Bank, 387 F. Supp. 2d at 28 (footnote omitted). Mr. Fridman himself acknowledged that the "rules of business" in Russia "are quite different to western standards" and to "be completely clean and transparent is not realistic." Id. at 29.

Also, there's this attempt by the Russians to totally upend basically all of US defamation law, and say that Steele has to prove that what is stated is "true" or else it's actual malice. That's... not how it works.

Plaintiffs argue that Defendants have not demonstrated that the statements are true.... However, the burden is on Plaintiffs to show that the statements were false, not on Defendants to demonstrate their truth.

So, without any evidence to get over the actual malice hump, the court says that the plaintiffs have completely failed to show any likelihood of success, thus triggering the anti-SLAPP law to dump the case.

There is, of course, also the Hail Mary pass at the end of the Plaintiff's efforts, which is to try to force the case into discovery first. Of course, this is explicitly what anti-SLAPP laws are designed to prevent: stopping a bogus defamation case from eating up a ton of the defendants' time and resources in discovery. Indeed, the court notes that this seems like a clear desire to just go on a fishing expedition. After first pointing out that the Russians have presented zero evidence that Steele is somehow holding onto information that will prove actual malice, it notes:

...the Constitution does not entitle plaintiffs in defamation cases to conduct fishing expeditions. The provision of the Act permitting targeted discovery only if the plaintiff shows a likelihood that discovery will produce clear and convincing evidence of actual malice is consistent with plaintiffs' constitutional rights, including their right to trial by jury.... It is also consistent with more general direction from the Supreme Court "to expeditiously weed out unmeritorious defamation suits" in order to "preserve First Amendment freedoms."

And thus:

Plaintiffs are correct that the Act was "not enacted to immunize surreptitious for-hire intelligence operatives who defame private persons." ... However, the Act was enacted to protect the right of advocacy on issues of public interest, and it does not exempt advocates if they can be described as "surreptitious for-hire intelligence operatives." Nor does the Act immunize any defamatory statement whether the information was obtained surreptitiously or openly, or for hire or for other reasons. The Act allows defamation suits involving statements about issues of public interest to proceed, provided that the subjects of the alleged defamatory statement offers evidence that they are likely to succeed. Plaintiffs have failed to provide such evidence....

In other words, this was a classic SLAPP suit and has now been tossed out based on DC's anti-SLAPP law, exactly as it should be. And it was dismissed with prejudice as well, so they don't get to file an amended complaint. Of course, they could appeal, but this is a pretty straightforward application of both an anti-SLAPP law and basic defamation law in the US, so it seems unlikely that such an appeal would be successful.

Over in the federal case, this ruling has already been filed with the judge, though again, it is likely that the federal court will not use the anti-SLAPP law, but seems likely to dismiss for basically the same reasons, just on the Motion to Dismiss instead.

Either way it's nice to see an anti-SLAPP law doing the job it's supposed to do in getting questionable defamation cases, that appear to be brought just to silence a speaker, dismissed quickly. It's yet another reminder of why (a) we need a federal anti-SLAPP law and (b) more states should pass their own anti-SLAPP laws as well.

Filed Under: anti-slapp, christopher steele, defamation, first amendment, free speech, german khan, mikhail fridman, peter aven, russia, steele dossier
Companies: alfa bank, fusion gps

Dutch Government Prosecuting Dutch Citizen For Insulting Turkish President Recep Erdogan

from the way-to-suck-up-to-a-complete-POS dept

Turkey's president Recep Erdogan is the pettiest of tyrants, ruling with an iron fist and an easily-bruised ego. In addition to snuffing out dissent in his own country with a combination of arrests and intimidation, Erdogan and his government scour the planet for non-Turkish citizens who have offended Lord Gollum.

This doesn't just take the form of content removal requests and site blocking. It also means actual arrests of foreign citizens residing in other countries. Germany's government was shocked to find an old law on its books -- one that forbade insulting foreign states -- being used against one of its own, a German comedian who wrote an immensely unflattering poem about the Turkish dictator. The government gave in at first before swiftly excising the law.

The same can't be said about the Netherlands, another country with bad laws Erdogan is more than happy to exploit to silence criticism. This makes things a little easier for the Turkish government. The last time it punished a Dutch citizen for criticizing the Turkish president, it had to wait for the journalist to visit the country before arresting her.

This time the Dutch government is going to be doing the punishing. Erdogan has spoken and, rather than being greeted with laughter followed by a dial tone, the Dutch government appears to be moving forward with a local prosecution.

A 64-year-old man from Sittard in the Netherlands will face prosecution for insulting President Recep Tayyip Erdoğan in a series of offensive e-mails he sent to the Turkish Embassy back in 2016.

In the e-mails, he compared Erdoğan to Adolf Hitler and also attached a photo of the Turkish president in Nazi uniforms, according to the BBC.

Erdogan knows the laws of foreign countries at least as well as he knows his own. He's found another "insulting a friendly foreign head of state" law on the books in the Netherlands and has successfully demanded punishment for this violation of a foreign law by a foreign citizen.

This is an unacceptable turn of events. Just because the law is on the books doesn't mean Dutch prosecutors have to actually prosecute anyone. Laws are broken every day, and even those incidents that law enforcement witness don't always result in charges. For this person, there's the possibility of a 6-8 month jail sentence for comparing Erdogan to Hitler, which isn't that much of a stretch.

This bad law remains on the books for now. An effort to repeal it stalled, but hopefully the government's disgraceful bootlicking of a "friendly" foreign head of state will result in enough outrage the law will be stricken before it does any more damage.

Filed Under: free speech, gollum, insults, jurisdiction, netherlands, recep tayyip erdogan, turkey

Automated Filter Removed Parliament Member's Article Warning About Censorship By Automated Filters

from the i'm-sorry-dave,-i'm-afraid-i-can't-allow-that dept

Last week, Tim Cushing had a post about yet another out of control automated DMCA notifier, sending a ton of bogus notices to Google (most of which Google removed from its search engine index, since the sender, "Topple Track" from Symphonic Distribution was a part of Google's "Trusted Copyright Program," giving those notices more weight). The post listed many of the perfectly legitimate content that got removed from Google's index because of that rogue automated filter, including an EFF page about a lawsuit, the official (authorized) pages of Beyonce and Bruno Mars, and a blog post about a lawsuit by Professor Eric Goldman.

But, seeing as we're getting towards September when the EU Parliament will again be voting on the big Copyright Directive proposal there, including Article 13, which will require mandatory filters or other automated tools for preventing copyright infringement, I thought it was important to do a separate post calling out one of the other pages taken down by Symphonic Distribution's out of control Topple Track. And that was that it got Google to de-index an article by Julia Reda, a member of the EU Parliament who has been leading the charge against the problematic provisions in the Copyright Directive proposal.

Specifically -- and it would be hard to make this up if we tried -- Topple Track's automated filter got Google to de-index this blog post by Reda, in which she details the problems in Article 13 and how it will create mandatory censorship machines, that would likely lead to massive internet censorship of perfectly legitimate content.

Let's repeat that so it can sink in. An automated filter helped take down an article by a Member of the EU Parliament, explaining how a (still being debated) proposal would create automated filtering systems that would take down all sorts of legitimate content.

This feels like the sort of thing that should end all debate about just how damaging Article 13 might be (though, of course, it won't). When you force more mandatory filters onto the internet, these kinds of problems will only increase. Tons and tons of legitimate and perfectly legal content will get blocked. Last month, we posted a useful demonstration of just how much legitimate content would get censored under such a plan, but we never imagined that a perfect example would present itself just weeks later showing just how bad an idea Article 13 is.

Filed Under: article 13, automated takedowns, censorship machines, copyright, dmca, filters, julia reda, topple track
Companies: google, symphonic distribution

EU Commission Moving Forward With Legislation Demanding One Hour Removal Of 'Terrorist Content'

from the ask-and-ye-shall-receive-as-many-fines-as-ye-can-collect dept

Governments -- which will process requests from citizens in statutorily-required time almost zero percent of the time -- never think the private sector moves fast enough. The government says "Jump" and then immediately asks why the jumping wasn't already in progress when it ordered the jumping to commence.

Content that isn't even of the "I know it when I see it" variety isn't being taken down quickly enough for the EU. Various members have implemented their own 24-hour policies for the removal of everything from "hate speech" to "extremist content" -- both particularly difficult to classify immediately when context and newsworthiness must be considered.

The EU Commission is reeling in the leash it has attached to US social media companies. It pitched the idea back in March but now appears to following through with its threats. The latest move towards impossibility is detailed by The Financial Times.

Brussels plans to force companies including Facebook, YouTube and Twitter to identify and delete online terrorist propaganda and extremist violence or face the threat of fines.

The European Commission has decided to abandon a voluntary approach to get big internet platforms to remove terror-related videos, posts and audio clips from their websites, in favour of tougher draft regulation due to be published next month.

Here's the stipulation that will turn popular social media sites into EU-owned ATMs.

Although details of the regulation are still being drawn up inside the commission, a senior EU official said the draft legislation was likely to impose a limit of one hour for platforms to delete material flagged as terrorist content by police and law enforcement bodies.

Imagine imposing this sort of time limit on anything a government agency does. Imagine the outcry about the impossibility of serving citizens in a timely fashion. But nothing's too short for the private sector, which can set about nuking content indiscriminately just in case, rather than write checks to the EU on an hourly basis.

The impetus is recent terrorist attacks, of course. Any amount of ridiculousness can be excused in the name of public safety and national security, even if the resulting mess has almost zero impact on either of those two concerns.

The incumbent social media sites already have algorithms and live moderation teams addressing questionable content. And it's still not enough for insatiable government officials. Entrants into the market may as well not even bother. They cannot hope to stay alive, much less compete, if governments are going to hold them directly responsible for content posted by their users.

Then there's the fact that burying stuff as soon as it shows up does little to aid investigations or the pursuit of terrorists. Ask anyone who's witnessed the damage done to law enforcement efforts by SESTA/FOSTA -- a law touted as a crushing blow to human trafficking. All it's done is make traffickers harder to find by forcing them to utilize less visible platforms and communication methods. The same thing is happening here and every time "terrorist content" is nuked, it makes martyrs of villains and proves to acolytes and new recruits the West is out to get them.

The EU would be better off letting the voluntary measures already in place go to work. The press for one-hour turn time reeks of rent collection, not honest concerns about public safety.

Filed Under: censorship, content removals, europe, takedowns, terrorist content
Companies: facebook, twitter, youtube

As Press Freedom Dies In Turkey, Twitter Is There To Help Dig Its Grave

from the enablers dept

Turkish president Recep Erdogan figures the best critic is a silenced critic. Determined to "earn" the respect of people worldwide, Erdogan and his government have engaged in unprecedented censorship. This goes far beyond the punishment of its own citizens. Erdogan has tried to secure charges and prosecutions from other governments against their own citizens for having the temerity to not take him as seriously as he takes himself.

Erdogan takes down newspapers and platforms with equal aplomb. He does this to stop things like the following from circulating:

It doesn't work, of course. Nothing gets censored worldwide and whatever censorship hits home can be circumvented. But of all the internet targets, Twitter is Erdogan's absolute favorite. The Committee to Protect Journalists has done the math. Its excellent article on Erdogan's censorship activities makes it clear that all other countries are merely pretenders to the throne when it comes to talking Twitter into doing their dirty work.

Over 1.5 million tweets have been withheld in Turkey by Twitter, thanks to Turkish government demands. Frequently targeted by removal requests are citizens who would normally be afforded extra speech protections in countries not run by a thin-skinned thug. And an American company playing ball with an authoritarian doesn't leave much room for recourse.

When CPJ reviewed a Buzzfeed News database of over 1,700 accounts withheld in one or more countries, along with court orders uploaded by tech companies to Harvard University's Lumen database, tweets, Twitter lists, and news reports, it was able to identify at least 59 Twitter accounts that belong to journalists and media outlets censored using the CWC tool in Turkey. As of late July, those 59 accounts had a combined following of over six million, in a country of about 11 million Twitter users.

Journalists whose accounts have been censored by CWC [country withheld content]requests told CPJ that Twitter is inconsistent with its compliance with such requests and complained about the lack of remediation options.

Journalists tweeting about the decline of press freedoms in Turkey are seeing their tweets removed by a compliant Twitter. And this is all Twitter has to say about its compliance in the decline of press freedoms in Turkey:

Colin Crowell, Twitter's head of global public policy, told CPJ, "If [we] don't use CWC, then the alternative is to remove [the content] globally [then] nobody can see it."

But that simply isn't true. Twitter has to know there's a third option: no removal at all. Even if the request is lawful in Turkey, Turkey's speech laws are terrible. Twitter doesn't have to make things worse by letting the Turkish government steamroll critics via removal requests. Sure, that means it might lose access to an entire country, but it shouldn't be so willing to be an extension of an abusive government.

It's not just a Twitter problem. Google's decision to help build the Chinese government a censored search engine is unacceptable, no matter how many more millions of users Google might reach.

Turkey's government may drive the content removal business on Twitter, but there's censorship everywhere from authoritarian regimes being aided by US companies that should act as a bulwark against tyranny. At the very least, there should be constant pushback against demands like these, rather than acquiescence under the disingenuous theory that blocking content worldwide is the only alternative.

Filed Under: censorship, free speech, recep tayyip erdogan, takedowns, turkey
Companies: twitter

Appeals Court Says Of Course Twitter Can Kick Racists Off Its Platform

from the everyone-move-along-now dept

Phew. After a surprising (and very, very weird) ruling in a California state court earlier this summer, that suggested that a well known racist might have a legitimate legal case against Twitter for kicking him off their platform, an appeals court has quickly and thoroughly corrected that error. To understand what happened here requires a little bit of background, so let's dig in.

Back in March, we wrote about a silly case filed by noted racist (he prefers "race realist" or "white advocate" but come on), Jared Taylor, who had been kicked off Twitter. Taylor sued, claiming that Twitter kicking him off the platform violated various rights. As we noted at the time, the case had no chance, and would be tossed out on CDA 230 grounds, as the law makes it clear that platforms cannot be liable for their moderation choices. Indeed, the whole reason CDA 230 was first created was in response to a horrible court ruling that said moderation choices could make you liable. CDA 230 was a correction to that mistaken court. And in the two decades since then we've seen all sorts of attempts by people to argue their way around CDA 230 and nearly all of them fail, and thus we expected this one to fail easily. As I noted in that original post, I had spent some time going back and forth with some of Taylor's lawyers, who seemed surprisingly uninformed about CDA 230.

So, I will admit that I was a bit surprised back in July when the court refused to dump the case. While the official ruling came in July, the Judge's rational was laid out at a hearing in June, in which he did agree to dump some of the claims, but kept one claim: an "unfair competition" claim. The reasoning was... very, very strange. Basically, the court claimed that under California law, Taylor could claim that Twitter's terms of service were "unconscionable" because they said the site could kick you off for any reason. It is true that California code 1670.5 says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." But how is Twitter's terms of service unconscionable?

During the hearing, Twitter's lawyers seemed reasonably flummoxed that this was even being brought up and asked for more time to go back and research and brief the issue. And they were right to be confused. Because there's never been any other court finding that a basic online terms of service that says the site has the final word in deciding who can use the platform is "unconscionable" -- and that's partly because of CDA 230, that makes it clear the platform has the final say, and state law can't interfere with that. But here, the judge ignored all of that and suddenly decided that the "we can kick you off for any reason at all" clause must be both outside the purview of CDA 230 and possibly unconscionable. From the hearing (Carome is Twitter's lawyer, Patrick Carome, Peters is one of Taylor's lawyers, Noah Peters:):

MR. CAROME: What are the unconscionable provisions that Your Honor possibly sees here? I --

THE COURT: I can tell you what's alleged, and I believe adequately so, something to the -- I could get the first amended complaint to quote it exactly, but something to the effect that Twitter can, at any time, for any reason, or no reason, pull any account. Have I stated that correctly?

MR. PETERS: Yeah; that's right.

MR. CAROME: There is language to that effect, Your Honor; I would submit that that's not... remotely unconscionable for a on-line platform, such as Twitter, which is completely free, given to the world for free, that requires users -- it has a gating --

THE COURT: And --

MR. CAROME: -- requirement, and let's users in under certain conditions, it is absolutely permissible and, indeed, subject to First Amendment rights and editorial decision that a platform that is engaged in the distribution of speech may, for any reason, just like a newspaper editor could, for any reason, choose not to run a letter to the editor that it receives. That's not unconscionable; that's not remotely unconscionable; that's the way systems work. That's the way -- and so I would certainly --

THE COURT: So let me explain to you why I see differently and the rules that I believe I am bound by in making my determination:

First, I am required to liberally construe the complaint. It's right there in the California Code of Civil Procedure. And, if you want, I can cite that for you, as well; Second, I need to draw whatever reasonable inferences I can draw in favor of the pleading that is being challenged. And in doing both of those things, and liberally construing the complaint, and in drawing reasonable inferences in its favor, I envision or I believe that the complaint alleges something along the lines of: Twitter is the largest communication source in the world. And the way to get your word out and the way to be heard in the modern era, particularly with regard to such important matters as being able to petition the elected leaders and others who are involved in government, for redress, is to be able to be on the Twitter platform.

And for Twitter to know that and nonetheless impose language, as it did here, an otherwise prolix document that's not highlighted, and done on an adhesion contract basis, and on a take it or leave it basis, it is procedurally unconscionable in a large measure.

There's more, but that was the crux of it. And, I should note that this is crazy. Part of the reason I didn't even blog about it at the time was that it was such a crazy ruling, completely divorced from basically all precedent on how online platforms manage their services, that it seemed inevitable that it would be overturned.

What's surprising is just how quickly it was overturned. First noted by Eric Goldman in a detailed post over the weekend, the appeals court seemed so perplexed by the judge's ruling that it smacked it down without even hearing from Taylor's lawyers, more or less saying that ruling was so egregiously off-base that it wouldn't matter what Taylor's lawyers had to say.

Of course, the Appeals Court is a bit nicer in how it put it, and basically tries to suggest that maybe the reason the court got it so wrong was because it had not yet read the important Hassell v. Bird ruling that came out in between the Taylor hearing and the official ruling by the judge. The Hassell ruling reinforced how broad CDA 230 was for internet platforms, and how they are given wide latitude in determining how to manage their own platforms, including editorial choices on what to keep up and what to take down. So, here the appeals court basically says to the lower court "you totally screwed this up, but maybe because you hadn't yet read this latest ruling" (leaving out that the Hassell ruling more or less reconfirmed what dozens of other courts have said):

It appears respondent superior court erred in issuing its July 10, 2018 order overruling in part petitioner's demurrer to the first amended complaint of real parties in interest. We recognize, however, that when respondent issued its order, it may not have had the benefit of the analysis of Hassell v. Bird..., which the California Supreme Court had filed on July 2.

It then goes on and presents a nice thorough analysis of why CDA 230 clearly protects Twitter in this regard and the entire case should be dismissed. It goes through the whole history of the case, along with some history of CDA 230, listing out a bunch of cases that make it clear that internet platforms can kick people off. And then explains why the lower court was simply wrong to think that an unfair competition claim isn't pre-empted by CDA 230:

That real parties allege a cause of action under the UCL does not place their claim outside the scope of immunity provided by the CDA. (See Cross, supra, 14 Cal.App.5th at pp. 196, 208; Caraccioli v. Facebook, Inc. (N.D. Cal. 2016) 167 F.Supp.3d 1056, 1064.) Like the plaintiffs in Cross, real parties claim they are seeking to hold petitioner liable for statements or promises made in its TOS and Rules. (See Cross, supra, at pp. 200-201, 206-207.) But evaluating whether a claim treats a provider as a publisher or speaker of user-generated content, 'what matters is not the name of the cause of action'; instead, what matters is whether the cause of action inherently requires the court to treat the defendant as the "publisher or speaker" of content provided by another.' " (Id. at p. 207, quoting Barnes, supra, 570 F.3d at pp. 1101--1102.) Here, the duties real parties allege Twitter violated derive from its status or conduct as publisher because petitioner's decision to suspend real parties' accounts constitutes publishing activity. (Cohen v. Facebook, Inc., supra, 252 F.Supp.3d at p. 157; Fields v. Twitter, Ina, supra, 217 F.Supp.3d at pp. 1123-1124.) As Hassell reiterated, "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are barred.'" (Hassell, supra, 5 Cal.5th at p. 536.)

Therefore, let an alternative writ of mandate issue commanding respondent San Francisco County Superior Court, in Jared Taylor, et v. Twitter, Inc., San Francisco County Superior Court case No. CGC18564460, to set aside and vacate its order of July 10, 2018 order overruling part in part petitioner's demurrer to the first amended complaint of real parties in interest, and to enter a new and different order sustaining petitioner's demurrer in its entirety; or, in the alternative, to appear and show cause before Division One of this court why a peremptory writ of mandate should not be granted.

Basically, toss this case, or come back to the appeals court and explain in great detail how this case somehow goes against the rulings in every other case. Taylor's lawyers indicate that they'll continue fighting back, but I stand by my original prediction in this case that it's a lost cause.

Separately, I will note that the weird ruling back in June/July in this case, set off a bunch of people online who believed it showed -- as some have been ridiculously claiming -- that moderating platforms somehow makes you lose CDA 230 protections. I do wonder how they'll all react to this quick action on appeal... If what's happening on Twitter is anything to go on, they're going to ignore it. After all, over the weekend I saw at least one tweeter still pointing to the June decision to "prove" that kicking people off of Twitter might violate the law.

Filed Under: california, cda 230, content moderation, jared taylor, moderation, terms of service, unconscionable, unfair competition
Companies: twitter

Judge In Broward County Documents Case Decides The First Amendment Doesn't Cover These Public Records

from the 'freedom-of-the-press-is-nice-and-all,-but-shut-the-hell-up' dept

So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.

Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print.

So much for the vaunted First Amendment. While judges are welcome to deliver instructions about what can or cannot be printed (provided they don't mind violating the First Amendment 90% of the time), there's no reason to hand out these instructions to document recipients in public records lawsuits like this one. That's why redaction exists: so public entities can fulfill their public records obligations while withholding information that qualifies for exemptions or to comply with privacy laws. If the respondent screws up the redaction, there's no legal obligation for new agencies or any other records requester to pretend what wasn't supposed to be accessible isn't accessible. The burden is on the government to perform its job correctly.

No laws were violated by the Sun Sentinel's discussion of parts of the document that were supposed to be withheld. It acquired the document lawfully -- in fact, as a result of this court's order -- and discovered the redaction technique used didn't actually redact anything. Parts of what was withheld by the school shows the Broward County School Board mishandled some of its interactions with the Parkland shooter. This obviously was of great interest to the public, so there's no question that part weighs heavily in the favor of the paper's First Amendment rights.

What's worse is the judge stated in court the Sun Sentinel did something devious to expose the supposedly-redacted information, when it was actually the Broward County School Board that failed to do its job properly.

“You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”

Um… OK. What the hell does this even mean? Would she be coming down on a public records recipient who was handed the wrong documents or entire pages that were supposed to be withheld? Would she have harsh words for a recipient who received someone else's requested documents thanks to a bureaucratic screw-up and published those? Here's how Judge Scherer thinks the First Amendment should be applied to public records:

“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.

Whew. Sounds like prior restraint. The only entity that should be restrained is the government in public records lawsuits, and only what's absolutely necessary to be withheld should be withheld. It's not up to the judge to hand out a line-by-line order on publication to recipients. The restraint should target the government and no one else. If the government screws up, that's on it, not those who've lawfully acquired the documents.

Given this terrible take on the First Amendment, I can offer a much better prediction this time around: the Sun Sentinel's anti-SLAPP motion against the Broward County School most likely will not be entertained by this court. Whatever was said here is the judiciary standard in Judge Scherer's court. And it sets an extremely low bar for government agencies who think others should be yelled at for the government's failures.

Filed Under: broward county, broward county school board, elizabeth scherer, first amendment, florida, free speech, prior restraint
Companies: sun sentinel

Free Speech Pro-Tip: You Can Yell Fire In A Crowded Theatre

from the new-gear-from-techdirt dept

New gear from Techdirt, now available on Teespring »

No discussion about free speech gets very far without someone busting out the idea that "you can't yell fire in a crowded theatre". It's a phrase that's irritated actual free speech experts for years: it adds nothing to the discussion, and it's not even true — there are plenty of times when you can (not the least of which being if the theatre is actually on fire!) Moreover, the phrase itself is a relic of an old, awful, and overturned Supreme Court ruling that put someone in jail for criticizing the mandatory military draft in the First World War. The inimitable Ken White dug into the phrase's uselessness and horrible legacy in a 2012 Popehat post and, more recently, an episode of the Make No Law podcast.

And now you can help fight back against this dangerous idea with new gear from Techdirt! The Free Speech Pro-Tip is available on t-shirts, hoodies, mugs and stickers from Teespring.

Order yours today, and be sure to check out our storefront for other great Techdirt gear!

Filed Under: 1st amendment, fire in a crowded theater, free speech

Broward County School Board Gets Hit With Anti-SLAPP Suit After Trying To Punish Paper For Exposing Its Redaction Failure

from the could-be-a-costly-unforced-error dept

Last week, the Broward County School Board went after a Florida newspaper, claiming it should be held in contempt of court for publishing information the school district didn't properly redact. The Sun Sentinel obtained a copy of the Parkland school shooter's educational records as the result of a public records suit. Certain information was redacted -- or at least was supposed to be -- to comply with state and federal privacy laws.

What was delivered to the Sun Sentinel by the district had black redaction bars covering two-thirds of the document. Unfortunately, the redactions were merely cosmetic. Anyone with a copy of the PDF could select the "redacted" text in the PDF and paste it into a text editor to see what was supposed to have been withheld. The school board screwed up, making it possibly liable for privacy law violations, but it went to court claiming it was all the Sun Sentinel's fault anyone's privacy got violated.

The Sun Sentinel has now responded -- both with an editorial middle finger and a filing in court. (h/t Brittany Wallman) If everything goes the Sun Sentinel's way, not only will it not face contempt charges (there's been no ruling on the motion, so it appears the judge doesn't believe closing barn doors post-livestock exodus qualifies as an emergency), but might collect some cash from the school district for trying to silence the paper.

From the motion [PDF]:

In a rush to deflect from its own negligence in publicly disclosing the CEN (Collaborative Educational Network) report at issue in a wholly unsecured format, the School Board now seeks to have this Court find the Sun Sentinel in contempt for exercising their First Amendment rights to truthfully report on a matter of the highest public concern: the exact nature of the special educational services the School District provided (or notably failed to provide) to Marjory Stoneman Douglas High School (“MSD”) shooter Nikolas Cruz—who now stands charged with multiple counts of capital murder. On their face, neither the civil court’s operative July 26, 2018 order (the “Civil Order”)—requiring the School District to disclose a redacted version of the CEN report—nor the criminal court’s August 3, 2018 order (the “Criminal Order”) in any way limited the Sun Sentinel’s ability to publish the report’s contents. Indeed, to have done so would have constituted an unconstitutional prior restraint.

By posting an improperly redacted version of the CEN report to its website for public download, the School District itself may have failed to comply with the court’s orders. In any event, there is no dispute that the Sun Sentinel lawfully obtained the report from the School District’s website and the information sought to be shielded by the redactions. Under such circumstances the law is clear: a First Amendment right to publish firmly attaches and no contempt proceeding may lie.

The motion points out the court never restricted what the paper could publish. Any court-ordered redactions were the responsibility of the school district, which was being sued for refusing to release the report at all. The in camera review conducted determined what could and couldn't be redacted by the school board. It had nothing to do with the Sun Sentinel, which was only the recipient of a document ordered to be produced. The paper acquired the document lawfully -- as did anyone else who downloaded the version with the faulty redaction. It was under no legal obligation to withhold information the school board meant to withhold, but didn't.

Even though the school district claims it handled everything correctly in regards to the Parkland school shooter, the Sun Sentinel points out in its editorial there are a handful of details that show school administrators mishandled situations involving a volatile student.

School officials didn’t properly advise Cruz of his legal options when he was faced with removal from Marjory Stoneman Douglas High School his junior year, leading him to give up special education services.

When Cruz failed to file the required written rejection of special education services, school officials nudged him, writing it up for him to sign.

The district “did not follow through” on Cruz’s subsequent request to return to the therapeutic environment of Cross Creek School for special education students.

The contempt motion looks like nothing more than a punitive move by the school board to punish a news outlet for exposing its mistakes to the world. If this anti-SLAPP motion secures a ruling in favor of the paper, the board's attempt to punish the news outlet for publishing lawfully-obtained documents will put taxpayers on the hook for the paper's legal fees.

Filed Under: anti-slapp, broward county, broward county school board, florida, free speech, public records, redactions, transparency
Companies: broward county school, sun sentinel

School Board Demands Journalists Be Punished For Reporting On The School Board's Redaction Failure

from the not-the-way-that-works-(also-not-the-way-redaction-works) dept

A redaction failure by a public entity has led to a request for contempt charges to be brought against a Florida newspaper and two of its reporters. The Sun Sentinel obtained a copy of the Broward County School Board's report on the Parkland shooter after a successful public records request lawsuit. The report was heavily redacted… or at least, it was supposed to be. But the school board screwed this task up.

After a judge's order, the school district publicly released the report Friday with nearly two-thirds of its content blacked out to protect 19-year-old Nikolas Cruz's privacy rights. But the district used a method that failed: Anyone could copy and paste the blacked-out report into a Word document to make all the text visible.

Sun Sentinel reporters Brittany Wallman and Paula McMahon, acting on a Facebook tip from a reader at 7:30 p.m., discovered on deadline the concealed text could be viewed. The reporters quickly rewrote the story reflecting the entire report, providing the first detailed account about the school shooter's years in the school system, what the district knew about him and what mistakes were made.

The report [PDF] has been uploaded by the Sun Sentinel with the redaction performed correctly. But the faulty version was used to craft a long article about the shooter using details the court had determined could be withheld.

A petition [PDF] has been filed by the school board in an effort to shove this genie back into the bottle. The motion alleges the Sun Sentinel agreed to the redactions, which were put in place to conform with federal and state privacy laws covering education and medical records. Some of what was redacted detailed errors made by the school system when handling the shooter's discipline and educational options.

What the school board is seeking is both impossible and preposterous. The report has already been read in full and an article produced showing what was redacted. Copies of the report containing the faulty redaction are likely still in circulation. The contempt order might cause the Sun Sentinel some pain, but the damage has already been done.

That's the impossible side. The preposterous side is this: the Sun Sentinel published information it obtained lawfully. The report was delivered by the school board in accordance with the court's order. If the school board screwed up the redaction (and it did!), it has no right to complain people accessed the content it meant to keep hidden. Even if the Sun Sentinel agreed to the redactions, that doesn't mean it's supposed to just sit there and pretend it can't see the text the school board failed to fully redact.

Whatever damage has been done was inflicted by the school board for failing to properly redact the report it was ordered to hand over to the Sun Sentinel as the result of public records request lawsuit. The recipient has no obligation to only report on unredacted portions of the report if it has access to the entirety of the document due to human error. The judge may not be happy the Sun Sentinel did this, but I can't see how the court's going to find this is the reporters' fault, rather than the school board's.

Filed Under: broward county, free speech, journalism, redactions, school board
Companies: sun sentinel