On Speech And Subpoenas, New York Giveth And Taketh (Now, The Bad News On Journalist Protection)

from the unappealing-jurisprudence dept

Having just written about a good New York ruling concerning third-party subpoenas and the ability to protect free speech, now we have to write about some less good news: the recent decision by New York's highest court undermining the protection afforded by the state's shield law.

Shield laws are critical to preserving a free and independent press because they enable journalists to resist testifying about the non-public aspects of their reporting, or having to turn over their notes and related work product. This ability to resist is what empowers them to promise anonymity to sources, which often can be the only way for news the public needs to know about to come to light. If journalists couldn't resist, or had to risk going to jail in order to try, it would inhibit their reporting and leave the public less able to learn about matters of public concern. Yet unfortunately this decision by the New York Court of Appeals invites just such a result by interfering with journalists' ability to avail themselves of the protection ostensibly afforded by the state shield law. (Note: New York confusingly labels its lowest court the Supreme Court. The highest court is instead known as the Court of Appeals. The Appellate Division is in the middle.)

As frequently happens with tough cases involving important First Amendment interests, the underlying facts of this case are awful: Conrado Juarez has been charged with the gruesome 1991 murder of his four year-old niece. The case remained unsolved until DNA evidence made him a suspect. After fourteen hours of interrogation, he purportedly confessed. He now claims that the confession was coerced, and prosecutors want to use the notes and testimony of New York Times reporter Frances Robles, who had interviewed him, to challenge his claims. The trial court originally refused her motion to quash the subpoena demanding she provide the notes and testimony, but the Appellate Division overruled that decision and quashed it. Only now the Court of Appeals has overturned the Appellate Division's ruling, thus making the subpoena once again enforceable.

In overturning the Appellate Division's decision the Court of Appeals found that the reporter had no right to appeal the original denial of her motion to quash the subpoena by the trial court. If she had no right to appeal the trial court's decision, then the Appellate Division had no ability to reverse it. [p. 2] But even if this Court of Appeals finding that she had no right of appeal were truly consistent with chapter and verse of New York appellate procedure (the dissent believes it isn't [Rivera dissent p. 8-9]), it's still a remarkably formalistic conclusion that gives short shrift to the significant substantive rights at stake.

Formalism isn't of course inherently bad; careful adherence to procedural rules can sometimes help protect substantive rights better than ad hoc short cuts can. These rules exist in order to further the administration of justice, and the Court of Appeals itself fairly makes this point: by limiting the ability to appeal in criminal matters, it keeps the administration of justice from being bogged down unfairly through appellate gamesmanship. [p. 2]

But justice isn't furthered by being a slave to interpretations of procedural rules so at odds with why we have the rules in the first place. Or, as in this case, so indifferent to the rights of those these rules were never intended to govern – namely, the third parties affected here and whose interests the Court of Appeals seems so hostile to [p. 4-5]. Or so arbitrary in their application and effect.

That arbitrariness is well on display here. First, the no-appeal rule the Court cites only applies to criminal cases, not civil ones, [p. 2], which suggests that if this case had not involved a prosecution, the reporter apparently could still have appealed a lower court's refusal to quash a subpoena without problem. Next, the rule limiting appeals does not apply to subpoenas issued as part of investigations of criminal matters. [p. 3] So, if they hadn't already begun to prosecute the defendant, the reporter also likely could have appealed a refusal to quash a subpoena.

In addition, if this case had originally broken the other way, and the trial court had originally quashed the subpoena, then per this rule, if applied consistently, it would have been the government who could not have been able to appeal that ruling. Obviously this particular result would be protective of journalists, but for the no-appeal rule to be applied this way it still makes journalists' protection entirely contingent on the judgment of trial courts. And that's a problem, because trial courts are not infallible. If they were, then there would be no need to have any appeals courts at all. We have these courts because sometimes lower courts get things wrong, as this one did here, and there needs to be some way to set things right when they do. But what the Court of Appeals is saying in this case is that when it comes to subpoenaing journalists (something that the NY legislature passed the shield law in order to prevent), if this subpoenaing happens as part of a criminal trial, then journalists will be entirely dependent on that trial court getting the decision whether to quash it perfectly correct in the first instance, because its decision on the matter will not be one that can ever be reviewed.

For shield law protection to be meaningful it needs to have adequate rights of appeal baked into it, in all situations where journalists may need to assert it. True, in the context of criminal trials journalists might be able to recover the right to appeal as part of their challenge of a contempt order seeking to punish their refusal to comply with a subpoena. But if journalists are forced to risk jail to assert their shield law protection effectively, then the protection the shield law affords is hardly effective.

The Court of Appeals seems to think that a legislative fix is the way to go to make it explicit that there is always a right of appeal. [p. 5] And there may also be the possibility of challenging a subpoena as part of an "Article 78" civil proceeding, although, as the dissent notes, forcing journalists to go this route does nothing to advance the speedy-trial interests the majority's "no appeal" rule is supposed to advance (nor is it clear that an Article 78 proceeding would necessarily be an effective option).

In any case, the alternatives available to a nonparty seeking some type of appellate review of the denial of a motion to quash will likely result in even greater delay of the criminal proceeding than would a direct appeal of a quashal motion. The two avenues left open to a nonparty to contest a denial would be a CPLR Article 78 action in the nature of prohibition or for the nonparty to simply fail to comply with the subpoena and seek appellate review of the subsequent order of contempt. In either case, if the prosecutor or defendant needed the nonparty’s evidence, they would wait until the resolution of the collateral proceedings. [Rivera dissent p. 11]

But the problem is that journalists should not be in the situation where their right and ability to resist subpoenas the shield law is supposed to protect them from are so uncertain. In order to be consistent with the First Amendment and similar principles enshrined in the New York Constitution, principles that the shield law seeks to vindicate, the right to appeal any trial court denial should be implicit, since the effect of barring these appeals so significantly impinges on the free press the public needs.

Sadly, however, this sort of decision – procedural formalism over the effective preservation of substantive speech rights – may be par for the course for the New York Court of Appeals these days. This case is not the first one where the Court of Appeals has reached a conclusion that puts substantive speech rights at risk because of the way it has limited the appellate rights of third parties. In fact, it justified this shield law decision by citing another case it decided last year where Facebook, as a third party, had tried to quash 381 Stored Communications Act "warrants" seeking information about its speakers. In that case, Facebook had been similarly denied a right to appeal the denial of its motion to quash, and for generally similar reasons as those cited in this case now.

We've written before about troubling effects that arise when shield law jurisprudence collides with attempts by platforms to protect the anonymity of their users. The questions of whether journalists can resist subpoenas and whether platforms also can are separate and distinct, and, as such, are often best resolved according to separate and distinct reasoning. After all, the right to a free press and the right to speak anonymously often affect liberty interests in different ways. Plus, as we saw in the Glassdoor case, when both the district court and the Ninth Circuit unhelpfully conflated the two sets of questions and used the reasoning for journalist subpoenas to drive its analysis of platform subpoenas, it used the weak reasoning in the former context to undermine the constitutional protection of anonymous speech in the latter. And in this case now we see further problems with conflating these issues, only this time in reverse, with the earlier Facebook case about platform subpoenas and anonymous speech now negatively shaping this case about journalist subpoenas and the right to a free press.

On the other hand, both anonymous speech and free press cases affect the interests of third parties and both vindicate important First Amendment rights upon which public discourse depends. Both therefore deserve to have had these critical rights treated with more care than the New York high court lately has afforded them.

Filed Under: conrado juarez, frances robles, free speech, journalism, new york, shield laws, source protections

DOJ Tells Ron Wyden About The Times It Has Collected Journalists' Communications; Leaves Some Facts Out

from the FILE-DELIBERATELY-NOT-FOUND dept

The Trump Administration -- much like the administration before it -- has declared war on leakers. The government prefers to selectively leak info using anonymous sources, but only the sort of leaks that serve its political/PR purposes. Everything else -- no matter how much the leaked info serves to better inform the public -- is the target of investigations and prosecutions.

Jeff Sessions claims this administration has opened three times as many leak investigations as Obama's. If so, it will rack up unprecedented numbers. Both the Obama administration and the Trump administration have decided it's OK to target journalists' communications to hunt down leakers, an act that strikes at the very heart of the First Amendment.

An indictment against James Wolfe, a longtime Senate Intelligence Committee advisor, was put together by harvesting emails and other private communications between Wolfe and various reporters. This document confirmed what was already suspected by Ron Wyden, who demanded late last year the DOJ turn over information on its targeting of journalists' communications.

As Zoe Tillman reports for Buzzfeed, the DOJ has delivered a response to Wyden's, but it's obviously still withholding information.

The department’s response letter dated March 5, 2018, obtained by BuzzFeed News, listed instances from “January 2012 to the present.” Not included: the seizure of New York Times reporter Ali Watkins’ email and phone records.

The department’s letter to Wyden predated the revelation last month that investigators had seized Watkins’ records as part of an investigation into former Senate Intelligence Committee staffer James Wolfe. According to the Times, Watkins, a former BuzzFeed News reporter, learned in February via a letter from the Justice Department that her records had been seized — appearing to put her case within the timeframe identified by the Justice Department in its March letter to Wyden.

This is a glaring omission by the DOJ. It suggests the agency is deliberately covering up some of its forays into First Amendment territory. This letter was delivered to Wyden in early March, a few months prior to the indictment showing the DOJ had gone after more journalists' communications. None of those are listed in this response.

It could be the DOJ excluded Watkins from its response because it (supposedly) did not target her communications. Even if so, it omitted the other journalists caught up in the investigation of Wolfe, who very definitely appear to have had their communications seized.

If the DOJ is unwilling to correct the record, or at least explain why it excluded the Wolfe investigation from this report, this can only be seen as a bad faith response. It may have confirmed its surveillance of AP journalists that resulted in the greater restrictions on investigations involving journalists put into place by the last Attorney General, but if it can't honestly discuss more recent targeting of press members, there's no reason to believe it hasn't decided to ignore its self-imposed restrictions.

Filed Under: ali watkins, doj, first amendment, freedom of the press, journalist's communications, journalists, ron wyden

Congressman Introduces Legislation To Criminalize Protesting In A Mask

from the paging-guy-fawkes dept

It's a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven't bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF's page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.

The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

Which brings us back to the weirdness of the present, in which House Congressman Dan Donovan from New York has submitted legislation that seeks to criminalize protesting while wearing anything that covers one's face.

Whoever, whether or not acting under color of law, while in disguise, including while wearing a mask, injures, oppresses, threatens, or intimidates any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, shall be fined under this title, imprisoned not more than 15 years, or both.

This represents a severe ratcheting up of the sentencing structures just for wearing a mask. Now, you may be saying that this bill is not targeting protesters, but those who break the law as described above. Except we have to place this bill in the context of reality. That context includes first that the language in the bill as what counts as a violation is overly broad (oppresses, threatens, or intimidates) and second that the government has shown itself to be enormously awful at not trying to criminalize peaceful protests it doesn't like. And, if anyone had any question as to what this bill is specifically intended to do, one need only look to the nickname Donovan gave it to conclude that this is as pure an attempt to make the infringement of speech as partisan as possible as can be found.

Section 1. Short title

This Act may be cited as the Unmasking Antifa Act of 2018.

Antifa, of course, being the favored bogeyman target from the political interests of those supporting the President, at least at the moment. And, sure, some protests where Antifa has participated in have gotten out of hand and criminal activities have taken place. We have laws for that. Using them as an excuse to specifically outlaw wearing a mask or face-covering while protesting is just plain stupid.

And pretty plainly unconstitutional. I would guess Donovan knows that, too, and is actually using this bill purely as a, shall we say... "virtue signal" to his constituents without having any expectations that it will both pass into law and defeat the immediate First Amendment challenges that will surely be thrown at it from many places. And, in case it isn't clear, playing those sorts of political games with free speech is about as scummy as it gets for a politician.

Filed Under: anonymity, antifa, dan donovan, first amendment, free speech, masks, protests, unmasking antifa act

State Appeals Court Tosses Defamation Suit Against Lawyer Who Wrote About Teen Driver Who Injured His Client

from the lower-court-apparently-believes-only-God's-direct-word-to-be-'substantia dept

An interesting sidebar to a case we've written about previously has surfaced via the ever-attentive Eric Goldman. Last month we covered a lawsuit against Snapchat brought by the victims of an car accident. The victims claim Snapchat is at least partially responsible for the injuries inflicted on Karen Maynard. The driver of the other vehicle, Christal McGee, was allegedly driving at over 100 mph when she hit Maynard's vehicle. The suit also alleged -- based on passenger statements, accident reconstruction, and police reports -- McGee was using Snapchat's "Speed" filter when the accident occurred.

The Georgia state appeals court allowed the case to proceed, but not on Section 230 grounds. It was remanded to the lower court to allow for more exploration of the issues at hand, noting that Section 230 likely does not apply to software created by Snapchat itself. Of course, dismissal may still be the outcome as it's going to be tough to prove Snapchat's creation of a filter was either negligence or contributory to the accident caused by McGee's unsafe driving.

The sidebar is this: Christal McGee has racked up a loss in Georgia Appeals Court in a case tied to the accident she caused. McGee sued Michael Neff -- the Maynards' legal rep in the lawsuit against Snapchat -- for defamation. According to McGee, Neff's blog post detailing the Snapchat lawsuit was defamatory. The lower court allowed the case to proceed, slapping aside Neff's anti-SLAPP motion.

The appeals court, however, finds [PDF] there was no defamation and certainly nothing written with actual malice. (Emphasis in the original.)

Neff argues that he acted in good faith at the time he published the article to his law firm’s website because he relied upon the police report, the report from the accident reconstructionist and the verified affidavit of Heather McCarty. This evidence was known to Neff prior to the publication of his article on April 26, 2016. In its ruling that “[t]here is evidence from which a jury could find that some of [the statements in the article] were false,” the trial court cited to affidavits signed after the publication of the article. This, and other evidence cited to by McGee that was not known to Neff until after the publication of the article, do not factor into his good faith at the time of publication.

McGee argued Neff's statements were malicious because the affidavits he used to write his article weren't signed at the point the post went live. The appeals court finds this does not make his use of the affidavits' contents malicious, especially since some of this testimony was already included in available police reports.

The only other evidence Neff had at the time he published his article were statements obtained by the police from the other passengers in McGee’s car. The statements in the police report by two of the passengers in McGee’s car did not deny McGee’s use of Snapchat. One of these statements was silent as to McGee’s speed, and the other stated that she had been traveling at 60-65 m.p.h. A third statement, by Heather McCarty, was signed and stated that McGee was going “a little over 110 m.p.h.” at the time of the accident.

The statements made by Neff about teens' use of Snapchat while driving (and, in particular, McGee's alleged use of Snapchat) were supported by outside statements. The lower court should not have declared these blog post assertions should be subjected to additional courtroom scrutiny before allowing a motion to dismiss.

The court also notes the content of the blog post was of public interest. It dealt with teen driving, Snapchat use while driving, a just-filed lawsuit against the company, and, generally, the dangers of distracted driving. The mention of McGee's alleged careless driving was relevant to the lawsuit and the issues at hand. There was nothing defamatory about Neff's public discussion of these allegation, especially when supported by passenger statements to police and as-yet-unsigned affidavits.

Adding it all up, the appeals court says there's no way McGee is likely to prevail on the merits of her allegations. The lawsuit is dismissed under Georgia's anti-SLAPP law, which means McGee will now likely to be on the hook for Neff's legal costs.

Filed Under: anti-slapp, christal mcgee, defamation, free speech, georgia, karen maynard, michael neff, reporting
Companies: snapchat

Malaysian Government Decides To Dump Its Terrible Anti-Fake News Law

from the UN-letter-writing-campaign-works dept

Malaysia's government seized upon the term "fake news" as a way to silence coverage of internal corruption. The new law gave the government a way to steer narratives and control negative coverage, going beyond its already-tight control of local media. It would have worked out well for Prime Minister Najib Razak, who was facing a lot of negative coverage over the sudden and unexplained appearance of $700 million in his bank account.

Razak is no longer Prime Minister. His replacement, Mahathir Mohamad, claimed he would abolish the law if elected. Once elected, Mohamad walked back his promise, replacing "abolish" with "modify." In the meantime, the law had already claimed at least one victim, a Danish national visiting Malaysia who made dubious claims on YouTube about police response time following the shooting of an activist.

UN Special Rapporteur on freedom of expression, David Kaye, had already officially complained to Malaysia's government about its "fake news" law and the damage it would do free speech. The government appeared to have ignored this in favor of protecting itself from free speech. The outgoing prime minister may not have needed this "protection" following his ejection from the public sector, but the new boss seemingly was in no hurry to give up this new power over the press.

Surprise, surprise! David Kaye now reports the Malaysian government is dumping this terrible law, effective almost immediately. In a letter to Kaye, Malaysia's UN ambassador states the government had reversed course on punishing fake news.

I wish to inform you that the new Government of Malaysia has decided to repeal the Anti-Fake News Act 2018. The process to do so has already begun, and a specific proposal is expected to be tabled during the upcoming Parliamentary session beginning on 16 July 2018.

This may be Prime Minister Mohamad belatedly making good on his campaign promise -- one he had broken immediately after taking office by offering to "redefine" the law rather than repeal it. This is good news for Malaysian journalists (as well as Dutch visitors), who may now avoid jail sentences or fines for publishing stuff the government doesn't agree with.

Filed Under: fake news, free speech, malaysia

Uganda Bans VPNs To Prevent Users From Dodging Its Absurd New Social Media Tax

from the kick-'em-when-they're-down dept

Countries around the world continue to wage their not so subtle war on the use of virtual private networks (VPNs) and encryption. In Russia, the government has all but banned the use of VPNs by layering all manner of obnoxious restrictions and caveats on VPN operators. The goal, as we've seen in China and countless other countries, is to ban VPN use without making it explicitly clear you're banning VPN use. The deeper goal is always the same: less privacy and online freedom for users who use such tools to dodge surveillance or other, even dumber government policies.

Case in point: Uganda recently decided it would be a great idea to impose a new 200 Uganda shilling ($0.05) tax on the use of social networking websites. President Yoweri Museveni pushed for the changes to combat what he calls "gossip," and now users have to pay the 200 shilling fee each day just to access websites and services like Facebook, Whatsapp, and Twitter. $20 more per year is not an insubstantial sum in a country where the average income is around $600, and the average Ugandan survives on usually less than a dollar per day.

The tax is, not surprisingly, not being received well:

The nation's wireless carriers were quick to comply, informing users they should use mobile payment services to pay the government tax:

Shockingly, VPN use has soared in the country as users try to dodge the new tax. Predicting this, Uganda's government has doubled down on bad ideas, and has been pressuring ISPs to ban VPN use. In a statement posted at Facebook (200 Uganda shillings, please), the Ugandan government tries to deter VPN use by trying to claim using VPNs will cost more than the cost of bandwidth and the social media tax, since VPN encryption utilizes slightly more bandwidth and most user connections have caps and overage fees:

"...if you think it is cheaper to use VPN than paying Shs 200/day, I think it is very unwise to think that because the data consumption under VPN is very high, I think you’re aware of that. We have technology that will block the VPN services so that no one dodges the taxes. Different VPN systems continue to come with more advanced features to circumvent government crackdowns but governments around the world have continued to block them."

Let the game of Whac-a-Mole commence.

Filed Under: censorship, free speech, social media tax, uganda, vpns

Pennsylvania Cops Abusing A Bad Law To Arrest People For Saying Angry Things To Them

from the but-people-actually-hate-us,-they-exclaimed-with-their-guns-at-low-ready dept

If you ever need a bad law abused, just look for a police officer. The police like to steer clear of knowledge whenever possible because it helps them out when legal liability is on the line. Qualified immunity rewards cops who work hard to make sure they don't know the laws they're enforcing. But when it comes to laws officers can use to punish those who fail to show them the respect they think they're owed, officers know those inside and out.

Legislators have made things worse by passing "Blue Lives Matter" laws that grant extra legal protections to a class of Americans no one but cops think is a class routinely subject to oppression or bias. While a "Blue Lives Matter" law makes it easier to intimidate the general public, it's not a necessity. Officers have used bad laws -- like criminal defamation -- to hassle and silence critics.

Over in Pennsylvania, a hate crime law crafted to protect ethnic and religious groups is being used by cops to arrest people for calling cops the sort of things cops get called all the time.

On Sept. 23, 2016, Robbie Sanderson, a 52-year-old Black man from North Carolina, was arrested for retail theft by in Crafton, a small town near Pittsburgh.

During the arrest, Sanderson called police “Nazis,” “skinheads” and “Gestapo,” according to an affidavit of probable cause filed by the Crafton Borough police.

For that, he was charged with a hate crime.

Someone needs to explain to these cops they're not an ethnic or religious group. They're just cops. It's not a race or a religion, no matter how much law enforcement tries to set itself apart from the people it's supposed to be serving. Being called a "Nazi" is not "ethnic intimidation." Neither are the following examples provided by The Appeal, even if the language used actually seems to fit better with the legislative intent.

In January that year, Sannetta Amoroso, a 43-year-old Black woman from Pittsburgh, was charged with multiple counts of first-degree felony ethnic intimidation by McKees Rocks police Officer Brandy Harcha. According to police, Amoroso became angry while trying to report a crime and said “I’m going to kill all you white bitches” and “death to all you white bitches.”

Then in June, Pennsylvania State Police Trooper Robert Wareham charged Steven Ray Oller, 47, of Chambersburg, with misdemeanor ethnic intimidation for threatening officers and using a racial slur directed at a Latinx trooper during an arrest for suspected DUI.

And in August, Trooper James Welsh of the state police charged Seneca Anthony Payne, a 39-year-old Bucks County man, with misdemeanor ethnic intimidation. Payne allegedly called an officer a “Gandhi motherfucker” during a welfare check at Payne’s home.

For what it's worth, state prosecutors seem more lawsuit-averse than these officers. The "ethnic intimidation" charges were dropped in all four cases. But here's the thing: the same departments charging these people with "ethnic intimidation" are too cowardly to include their misuse of a law in the official paperwork. As The Appeal reports, all of these departments claimed no hate crimes occurred in their jurisdictions despite booking these arrestees for hate crimes.

If a law written in a way that can be construed to cover actions law enforcement normally wouldn't consider crimes, it will be used to generate additional charges for arrestees. Cops know the laws far better than they claim in court. They like the grey area that allows suspicionless stops and pat downs, but absolute love the minutia that can turn normal reactions to police presence into an arrestable crime.

Filed Under: blue lives matter, free speech, hate speech, insults, pennsylvania, police, robbie sanderson

EFF Launches Lawsuit To Stop FOSTA/SESTA

from the and-off-we-go dept

This was predicted long before FOSTA/SESTA became law, but there were going to be constitutional challenges to the law -- and it appears that EFF has filed the first such lawsuit, representing the Internet Archive, Human Rights Watch, the Woodhull Freedom Foundation, Eric Koszyk, and Alex Andrews seeking to have the law declared unconstitutional and getting an injunction against it being enforced. You can read the complaint directly, which touches on a few different issues, with the 1st Amendment being a key one:

Using expansive and undefined terms, FOSTA’s criminal penalties and ruinous civil liability turn entirely on what content and viewpoints online speakers publish, the content and viewpoints that a platform allows to be posted, and the editorial policies a platform uses in determining whether to block, modify or remove material created by others. The law has already muzzled countless online speakers and led to closure of many online platforms that hosted their speech. By this action, Plaintiffs seek to have the Act declared unconstitutional under the First and Fifth Amendments of the United States Constitution, both on its face and as applied to Plaintiffs, and to enjoin the government from enforcing the Act.

As for why these plaintiffs, the lawsuit and related posts on EFF's site have more background, but the lawsuit sums it up nicely:

Plaintiffs are individuals and organizations engaged in constitutionally protected speech on the Internet, including a national human rights organization dedicated to sexual freedom, an international human rights organization, a massage therapist, an activist dedicated to assisting and advocating for the rights of sex workers, and a digital library of Internet sites and other cultural artifacts in digital form, that have already been harmed by FOSTA. Three Plaintiffs advocate for the legalization of sex work, both domestically and internationally, provide education, health and safety resources, and more broadly work to support sex workers, and are thus concerned that continuing their advocacy and assistance efforts will be considered “promoting or facilitating” prostitution, or that prosecutors or civil litigants will allege that they “recklessly disregard” that their activities may “contribute to” sex trafficking. This uncertainty has stopped some plaintiffs from speaking, at significant costs to their organizational and individual missions. Another plaintiff has suffered constitutional and monetary injuries because the online platforms he used to disseminate his speech have shut down because the operators reasonably fear liability under FOSTA. Still others are uncertain as to the legality of their well-established practices.

Not surprisingly, the complaint relies heavily on Reno v. ACLU, the very important case that invalidated every part of the Communications Decency Act other than CDA 230. The original CDA, like FOSTA/SESTA, was a broadly worded horrific bill that had tremendous chilling effects for speech online leading the Supreme Court to toss out the law as unconstitutional. Since then, the consensus around CDA 230 has meant there hasn't needed to be much litigation in this space, but FOSTA has revived it.

Both through direct restrictions and because of multiple layers of ambiguity, FOSTA is driving constitutionally protected speech off the Internet at a rapid pace; and, like the CDA before it, FOSTA “threatens to torch a large segment of the Internet community.” Reno v. ACLU, 521 U.S. 844, 882 (1997). FOSTA’s restrictions on speech cannot satisfy strict scrutiny because they do not effectively serve a compelling interest and are not the least restrictive means of attempting to do so, its operative provisions are vague and overly broad, and its selective alteration of federal immunity for online intermediaries is designed to promote censorship. These constitutional defects are magnified by the law’s ex post facto application.

The threat to online freedom of expression is significant. As the Supreme Court explained in Reno, the Internet burst onto the scene as a unique and wholly new global medium of human communication that gave individuals access to information as “diverse as human thought” on topics ranging from “the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls.” Id. at 849-52. It also naturally enabled people to communicate about sex, which the Court has acknowledged is “a great and mysterious motive force in human life” that “indisputably [has] been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Roth v. United States, 354 U.S. 476, 487 (1957).

The case also highlights one other key similar case, which was COPA -- the Child Online Protection Act, which was thrown out as unconstitutional as well. This case notes the similarities in FOSTA with those previous laws.

Passage of FOSTA represents the latest such effort, and is another example of where Congress got the balance wrong. Plaintiffs oppose all forms of human coercion and therefore do not question congressional intentions. And they support appropriately targeted and effective measures to end sex trafficking. But FOSTA will not reduce such practices; to the contrary, it only makes matters worse. The law erroneously conflates all sex work with trafficking. By employing expansive and undefined terms to regulate online speech, backed by the threat of heavy criminal penalties and civil liability, FOSTA casts a pall over any online communication with even remote connections to sexual relations. It has impeded efforts to prevent trafficking and rescue victims, and has only made all forms of sex work more dangerous. FOSTA has undermined protections for online freedom of expression, contrary to the near unanimity of judicial decisions over the past two decades.

For fairly obvious reasons, this is going to be a very, very important case to watch over the next few years, and I imagine the fighting over it is going to get pretty fierce.

Filed Under: 1st amendment, 5th amendment, alex andrews, censorship, eric koszyk, fifth amendment, first amendment, fosta, free speech, sesta
Companies: eff, human rights watch, internet archive, woohull freedom foundation

China Censors John Oliver Because President Xi Looks A Bit Like Winnie The Pooh

from the thin-skinned dept

Whatever you do, don't point out that some people think China's President Xi Jinping vaguely resembles Winnie the Pooh.

HBO Comedian John Oliver recently learned this the hard way when Chinese users of popular social networking website Weibo found they weren't able to mention Oliver by name without receiving an error message stating such comments violated "rules and regulations." After that, censorship monitor GreatFire.org indicated that HBO’s website was blocked entirely for the lion's share of the country since last weekend.

The cause of China's efforts to remove Oliver from the internet? This recent twenty minute segment took a semi-deep dive into China's political leadership, noting their abolition of term limits, ongoing censorship, the routine murder and/or imprisonment of political dissidents, the country's rather terrifying implementation of "citizen scores," and oh -- the fact that some people think that Chinese President Xi has a semi-decent resemblance to a rotund, honey-adoring cartoon:

"Apparently, Xi Jinping is very sensitive about his perceived resemblance to Winnie the Pooh,” Mr. Oliver said on the show. “And I’m not even sure it’s that strong a resemblance, to be honest. But the fact he’s annoyed about it means people will never stop bringing it up."

Like most Chinese internet censorship, more technical users can get around the attempt to remove Oliver from the Chinese internet by using a VPN. That said, like Russia and other countries, China has been busy saddling VPN vendors with all manner of cumbersome restrictions as part of an effort to effectively ban the technology from widespread use. Last year, China's Ministry of Industry and Information Technology declared that all VPN providers now needed prior government approval to operate, imposing fines up to $2000 on companies offering "unsanctioned" VPNs (read: nearly all of them).

Of course the censorship only proves Oliver's point: that the country remains entirely intolerant to free speech, Xi has arguably thin skin, and the Chinese leader does, in fact, strike a fleeting resemblance to a certain pantless bear with self-esteem issues and an eating disorder:

Filed Under: censorship, china, free speech, john oliver, satire, winnie the pooh, xi jinping, xi jinping looks like winnie the pooh

Australian Parliament Sends Ethics Committee After A Citizen For Mocking Gov't Official On Twitter

from the please-do-not-mock-us,-say-eminently-mockable-gov't-figures dept

It's 2018 and governments we assume to be enlightened guardians of civil liberties are still doing authoritarian things like turning journalists over to "ethics" committees for illegal tweets. Unbelievably, the Queensland (AU) Parliament restricts use of footage of its assemblies, forbidding anyone from using recordings for "satire, ridicule, or commercial sponsorship." Certainly we can see some reasons to potentially restrict promotional use of government footage for commercial sponsorship, but is anything more worthy of satire and ridicule than politicians? I submit to you that there is not. And this move by the Parliament is only going to encourage further satire and ridicule.

Last month, advertising consultant Dee Madigan commented with a retweet of a video snippet of parliamentary footage showing Mr Bleijie tearing up sheets of paper.

Her retweet included the comment: "Your taxes at work. A toddler tantrum for @JarrodBleijieMP."

Ms Madigan refused to delete the retweet, despite repeated requests from the Opposition, the Clerk of Parliament and the Speaker's office.

As a result, Ms Madigan has been referred to Parliament's ethics committee.

Here's the tweet that's resulted in a Parliamentary ethics committee inquiry.

MP Jarrod Bleijie swiftly dispelled any notions he behaves like a toddler by writing the Speaker and demanding something be done about this public mockery. The end result could be reprimand or fine for Madigan because she did something people do all the time (mock government officials). Non-toddler MP Bleijie and the ethics committee that didn't laugh his request right out of its office are going to ensure Queensland residents know just how serious Parliament's stupid broadcast rules really are.

Everything about this -- from the Parliament's restrictions on footage use to MP Bleijie's reaction -- is ridiculous. But so is ABC News' reporting, which inexplicably claims it can't republish Madigan's tweet.

[S]tate Parliament's terms and conditions stipulate that broadcast material "must only be used for the purposes of fair and accurate reports of proceedings" and must not be used for political advertising, satire or ridicule and commercial sponsorship.

To avoid breaching those same rules, the ABC cannot republish the tweet — sorry about that.

You idiots. Embedding the mocking tweet wouldn't make ABC complicit in the forbidden act of mocking Parliament with its own recordings. The republication of the tweet would clearly fall under the "fair and accurate report" protection. ABC's assertion isn't just inaccurate, it's cowardly. If anything was to come of ABC's republication, it would only increase the amount of scorn aimed at MP Bleijie, Parliament's ethics committee, and the asinine restrictions Parliament places on the publication of footage. It would not harm ABC in the least and yet here we are watching a journalistic agency become an unofficial partner in the government's outreach overreach program.

Filed Under: australia, dee madigan, ethics, fragile egos, jarrod bleijie, journalism, mocking, parliament, politicials