Florida Tells Court: Actually, It's Section 230 That's Unconstitutional (Not Our Social Media Law)

from the florida-man-does-florida-man-things dept

As you'll recall, Florida's social media bill was declared unconstitutional by a federal judge a couple weeks ago. The state has already moved to appeal that decision, so we'll have to see how the judges on the 11th Circuit feel about all of this. However, apparently the case in the lower court is still moving forward in some way (I had assumed that after the preliminary injunction and appeal that the case would be stayed until the appeal was decided, but apparently not? Understanding civil procedure is an impossibility).

Earlier today Florida filed its response to the lawsuit, which is... not much. It's basically this sentence over and over again:

This paragraph contains legal conclusions that do not require a response. Defendants deny any remaining allegations in this paragraph.

I count 142 such statements (roughly). When you get down to the defenses, they toss out a bunch, but the one that caught my attention is their sixth defense:

Insofar as 47 U.S.C. § 230 would render all or any portion of the Act unconstitutional, 47 U.S.C. § 230 is invalid and in violation of the First Amendment, the Tenth Amendment, and the principle of federalism.

The issue here is that while the law has been put on hold for violating the 1st Amendment, one of the other arguments is that even if it were constitutional (which it is not), it would be pre-empted by Section 230. We've discussed this in the past. Section 230 makes it clear that states cannot contravene federal law regarding moderation and if they do they're pre-empted. So, to counter that, Florida is now doing a "it's not our law that's unconstitutional, it's actually Section 230 that's unconstitutional!"

I guess we can add this to Donald Trump's recent Florida lawsuit that is also challenging the constitutionality of Section 230.

I doubt this particular challenge to Section 230 will end up getting very far, but it does seem notable as a case involving a state government arguing that Section 230 is, itself, unconstitutional under the 1st Amendment, 10th Amendment, and federalism. Of course, as the social media bill itself has shown, Florida does not exactly have a good track record for understanding what is, and what is not, a violation of the 1st Amendment. But, of course, when you have clueless Supreme Court Justices asking for cases challenging the constitutionality of Section 230, eventually we were going to get to this point.

Filed Under: 1st amendment, content moderatin, federalism, florida, pre-emption, section 230, social media

Fifth Circuit Sends Anonymous Cop's Lawsuit Againt Protest Organizer To The State's Top Court, Suggests Getting Injured Is Part Of The Job

from the ambulance-drivers-can't-be-ambulance-chasers dept

A decision that created a chilling effect on protected First Amendment activity is headed to yet another court to get the details sorted out.

It's been more than four years since an anonymous police officer sued over injuries they sustained while responding to a protest in Baton Rouge, Louisiana. The officer was struck in the face by a thrown chunk of concrete. Rather than recognize this was an unfortunate side effect of being in the law enforcement business, the officer sued activist DeRay Mckesson -- who decidedly did not throw the object that struck the officer.

The officer's argument was that Mckesson's organization of the protest, as well as his decision to lead protesters out to block the highway in front of the police station, made him at least indirectly responsible for the injuries the officer sustained.

Somehow this lawsuit and its ridiculous premise survived two passes by the Fifth Circuit Appeals Court, with its second decision noting how angry it was that it was forced to take another look at its inexplicable first decision: the one that said that Mckesson should have know that leading protesters out into a street would result in the injury of police officers.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

This twice-made decision was appealed and the Supreme Court said the Fifth Circuit got it wrong twice. However, it didn't necessarily affirm the right to protest and the right of protest leaders to be free of bullshit secondary liability claims. But it said the Fifth Circuit -- while not incorrect to raise the issue about liability under Louisiana state law -- should not have taken it on itself to define the contours of the state law and how it applied to Mckesson's actions in relation to the officer's injury.

The Fifth Circuit's third pass [PDF] follows the Supreme Court's instructions. It is sending this case to the Louisiana state Supreme Court to handle the open state law question. But it does so with some additional examination of applicable state laws that indicate the anonymous cop may find no one to sue by the time the state court is done examining it. And this is at least partly due to law blog Volokh Conspiracy and its titular creator, Eugene Volokh.

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer’s Doctrine, that could be dispositive. That doctrine, put succinctly, is a judge-made rule that “essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages.” Gann v. Matthews, 873 So. 2d 701, 705 (La. App. 1st Cir. 2004) (citation and internal quotation marks omitted). The parties disagree as to whether this doctrine bars Officer Doe from recovering. See Mckesson Suppl. Br., Dec. 18, 2020, Doc. No. 00515679716; Doe Suppl. Br., Dec. 18, 2020, Doc. No. 00515678655. We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana.

The Fifth Circuit provides a link to the Volokh Conspiracy post raising this issue, one that called the as-yet-unraised local legal doctrine a "certain win" for Mckesson.

That's where things stand now. Hopefully, the state Supreme Court will remind this officer that the flipside of having a lot of government-granted power is assuming the risks that come with the position. The ability to quell and/or contain protests comes with the possibility of injury. And when it's impossible to discover who actually threw the projectile that resulted in injury, the acceptable response isn't suing protest organizers, unaffiliated protest movements, and Twitter hashtags.

Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, police, protests

Court To Judge Roy Moore: You're Not Defamation-Proof, But This Contract You Signed Sure Is

from the always-read-the-fine-print dept

Judge Roy Moore -- former Senate hopeful and twice-removed-for-misconduct Alabama Supreme Court justice -- has lost his lawsuit against satirist Sacha Baron Cohen. Having agreed to be on the receiving end of some satire (albeit not knowingly), Roy Moore sued Cohen after falling victim to a prank in which Cohen (performing as his character General Erran Morad) waved an electric wand he claimed could detect sexual predators. The wand beeped while close to Roy Moore.

The bit was, of course, a reference to the cascade of sexual misconduct allegations that rained down on Roy Moore during his run for a Senate seat. Moore claimed that he never would have agreed to this if he hadn't been duped by Cohen and his production team into thinking he was actually in New York City to receive a prestigious award for his "strong support of Israel." Moore also claimed the pedophile wand beeping in his presence was defamation -- and $95 million of it at that.

Well, it isn't defamation and if there was any duping (and there was), Roy Moore agreed to it. The New York federal court handling the lawsuit brought by Moore and his wife, Kayla, has dismissed the case with prejudice, using both contract law and the First Amendment to do so.

Moore's claims fail because he signed a Standard Consent Agreement (SCA) in which he agreed to do (and, more importantly, not do) several things. Because this agreement was willingly signed, all three of Roy Moore's claims (infliction of emotional distress, fraud, defamation) have already been waived.

Here's the court [PDF] spelling it out the details Moore apparently failed to read when he signed the agreement:

Not only does the SCA set forth a clear waiver of any claims “related to the Program,” but the contract even enumerates certain waived claims, including the very three pleaded in this case. Paragraph 4 of the SCA reads:

[Judge Moore] specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Program, which are related to the Program or its production, or this agreement, including, but not limited to, claims involving assertions of . . . (h) infliction of emotional distress (whether allegedly intentional or negligent), . . . (m) defamation (such as any allegedly false statements made in the Program), . . . (p) fraud (such as any alleged deception about the Program or this consent agreement) . . . .

Moore did have the presence of mind to strike through a portion of the contract related to sexual behavior, but it doesn't help him.

Confronted with these unambiguous waivers of his only causes of action, Judge Moore turns to language he apparently struck through in another provision of Paragraph 4, which concerns an entirely different potential cause of action, “intrusion or invasion of privacy.” SCA ¶ 4(f). With this modification, the provision reads that Judge Moore waives any claims related to the Program

involving assertions of . . . (f) intrusion or invasion of privacy (such as any allegedly sexual-oriented or offensive behavior or questioning) . . . .

Judge Moore contends that this alteration somehow modifies the entire SCA to permit him to bring the causes of action alleged in the Complaint. The Court disagrees. The modification to Paragraph 4(f) of the SCA at most reflects an agreement of the parties to exempt from waiver an intrusion or invasion of privacy claim based on “any allegedly sexual oriented or offensive behavior or questioning.” But Judge Moore has not brought such a claim. And the modification does not pertain to the three causes of action—defamation, intentional infliction of emotion distress, and fraud—that Judge Moore in fact has pleaded.

That does it for Moore's claims. He explicitly agreed to not do the thing he's did: sue Baron Cohen for IED, fraud, and defamation. The court says the contract is enforceable under New York law, which means Moore is completely out of luck.

However, his wife -- Kayla Moore -- did not sign this agreement. But her claims of defamation are foreclosed by the First Amendment, which not only protects satire, but very heavily protects commentary on issues of public interest. Even if the assertion (which was made mainly by inference and some very suspect beeping from a very suspect electronic device) is possibly injurious, the question is whether anyone would take Cohen's satirical mockery as an assertion of fact.

In light of the context of Judge Moore’s interview, the segment was clearly a joke and no reasonable viewer would have seen it otherwise. The segment began with an absurd joke (i.e., “Gen. Erran Morad” boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare), followed soon by footage of numerous news reporters commenting on the accusations brought against Judge Moore. At this point, it should have been abundantly clear to any reasonable viewer that Defendants were using humor to comment on those accusations, rather than making independent factual assertions or even remarking on the truth or accuracy of the allegations. The actual interview of Judge Moore then became even more absurd. No reasonable viewer would have interpreted Cohen, in his over the-top “Erran Morad” character, waving a wand that supposedly detects enzymes emitted by pedophiles in the vicinity of Judge Moore as stating facts about Judge Moore. Nor would a viewer have reasonably believed that this gadget—which “Erran Morad” contended also was able to detect hidden tunnels used by terrorists—doubled as a device that also could detect enzymes secreted by pedophiles.

The other context that matters is the subject matter:

Cohen’s conduct during the interview with Judge Moore was related to press reports of accusations against Judge Moore of sexual misconduct involving young females, with this media coverage occurring while Judge Moore was campaigning for the U.S. Senate. The episode at issue began with footage of news agencies reporting these accusations against Judge Moore, followed by a clip of a public endorsement of Judge Moore’s candidacy. These matters are of public concern and are therefore protected by the First Amendment.

That does it for this lawsuit, at least for the moment. It has been dismissed with prejudice. The decision can be appealed but Moore can't do a bit of editing and mount another attempt to sue Cohen for these claims.

Getting suckered never feels good but being publicly embarrassed is rarely actionable. And when you're already traveling the path of the pariah, it's pretty tough to argue you've lost $95 million in reputation to someone who appealed to your ego, knowing it would likely blind you to the obvious.

Filed Under: 1st amendment, contracts, defamation, free speech, kayla moore, roy moore, sacha baron cohen, satire

Sixth Circuit Says School Board Can't Boot People From Meetings Just Because It Doesn't Like What They're Saying

from the seems-like-an-obvious-conclusion-but-here-we-are dept

Just because government officials may not like the tone of the criticism they're receiving doesn't mean they can use their government power to mandate civility. That's the determination of the Sixth Circuit Appeals Court, which has struck down part of an Ohio school board's rules of (public) engagement.

Following a school shooting in 2016, the Madison (OH) Local School District came up with a preventative plan -- one that involved allowing school staff to carry concealed weapons. This didn't play well with some parents. It also didn't play well with some of the district's students, who staged a walkout to protest gun violence. Following the discipline of those students, some residents decided to attend a school board meeting to express their feelings about the rule change and the punishment of students for their expressive speech.

Madison school district meetings are governed by the following "Public Participation Policy:"

Only Madison residents may participate, and they must limit their speaking time to three minutes. Participants must address the presiding officer, not Board members individually. The Policy authorizes the presiding officer to:

1. prohibit public comments that are frivolous, repetitive, and/or harassing;

2. interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]

4. request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.

Plaintiff Billy Ison attended three meetings from March to May 2018. His May appearance resulted in the Board's actions that prompted this lawsuit. Here's how that evening went, according to the Sixth Circuit's opinion [PDF]:

A video of Billy Ison’s remarks there shows him turning to address the room and reading from a prepared speech, accusing the Board of “threaten[ing]” the school to punish the student protestors. He calls the Board’s justification offered at the prior meeting for punishing “a smokescreen intended to conceal their true motivation . . . to suppress all opposition to pro-gun views” and “push its pro-gun agenda.” And it depicts him accusing the Board of “taking a very strong position on guns” when it decided to arm staff.

The Board interrupted Billy twice during his remarks. First, [Board President David] French asked Billy not to use the word “threatening.” Second, after Billy accused the Board of concealing their “true motivation” for punishing students, another Board member asked him to stop “putting words in [the Board’s] mouth” and saying things “that are not facts.” French then asked Billy to stop and warned that if he continued, security would escort him out. Billy continued, finishing his speech while a security officer escorted him calmly from the room. In total, he spoke just under three minutes. As French later recalled the incident, Billy “was being basically unruly, not following the rules, being hostile in his demeanor.” He let Billy speak “until other people were starting to object and getting offen[d]ed by it.”

Ison sued, claiming the restrictions on speech were unconstitutional, enacted by the Board in hopes of stifling criticism. He argued the Supreme Court's recent decision involving the registration of disparaging trademarks prevents the government from targeting speech considered "abusive, personally directed, or antagonistic." The Appeals Court agrees with Ison's assertions.

In Matal, the Court struck down the Lanham Act’s prohibition on federal registration of trademarks that “‘disparage . . . or bring . . . into contemp[t] or disrepute’ any ‘persons, living or dead.’” 137 S. Ct. at 1751 (alterations in original) (quoting 15 U.S.C. § 1052(a)). Though split between two plurality opinions, all Justices agreed that the “anti-disparagement” clause discriminated based on viewpoint because “[g]iving offense is a viewpoint.” Id. at 1763 (Alito, J., opinion). The Iancu Court struck down another Lanham Act restriction on “immoral or scandalous” marks, finding it “permit[ted] registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts.” 139 S. Ct. at 2299. It reasoned that the act impermissibly “distinguishe[d] between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation.” Id. at 2300. In short, these cases stand for the proposition that the government may not censor speech merely because it is “offensive to some.”

That this was an attempt to limit criticism of the Board and its members was made even more obvious by the testimony of the Board Director, who testified that "giving offense" was sufficient enough to move the Board to prevent the person from speaking further. Given this testimony and the undisputed video recording of Ison's comments and ejection from the meeting, the Appeals Court says the Board's participation policy -- at least in terms of its restrictions on certain forms of speech -- is unconstitutional.

The restrictions on “antagonistic,” “abusive” and “personally directed” speech prohibit speech because it opposes, or offends, the Board or members of the public, in violation of the First Amendment.

The court notes that this is not a blessing for ad hominem attacks in limited public forums. Attacking ideas and issues is one thing. Personally attacking individuals is quite another. The court says restrictions on this form of speech would likely still be permissible in many cases.

But tossing people from meetings or otherwise silencing them for being critical of government officials and their decisions definitely isn't permissible. And the Board will likely end up having to rewrite this to be a whole lot less infringe-y and whole lot more specific by the time the lower court is done handling the administrative duties of deciding on a proper remedy.

Filed Under: 1st amendment, 6th circuit, free speech, school board

Montana Senator Thinks The Third Time Is The Charm For His Anti-Flag Burning Amendment

from the stupid-on-repeat dept

Far too many government officials think it would be a good idea to lock up people for exercising their First Amendment rights. There's a lot of stuff certain politicians (including our former president!) and their supporters think should be criminal acts, but keep running head-on into the Constitution and its protection of speech.

At the top of this list is flag burning. This used to be a crime, but the Supreme Court said desecrating the flag was actually a form of criticism -- one fully protected by the First Amendment. That hasn't stopped a bunch of legislators from trying to make flag burning a crime. "Trying" is the key word here. The Supreme Court's Texas v. Johnson decision makes it pretty much impossible for flag burning bans to ever be considered constitutional.

But what if the Constitution could be changed? That's Montana Senator Steve Daine's idea. And it's one of his only ideas. Daines wants to amend the Constitution to make flag burning illegal. It's something he's wanted to do for several years now.

Daines first raised this idea in 2017. He floated it again in 2019. Those efforts went nowhere. Two years have passed and Daines is trying it again.

GOP Sen. Steve Daines (Mont.) on Monday reintroduced a constitutional amendment to bar the "physical desecration of the American flag."

“The American flag is a symbol of liberty and a beacon of hope. It represents the ideals that our nation was built upon and for decades, brave men and women have carried its colors into battle to defend the United States of America,” the Montana senator said in a statement released on Flag Day.

“The Stars and Stripes are a representation of freedom. We must always protect and respect the American flag,” he added.

Hey, Steve, the flag also represents the ideals of this country and the freedoms the government considers to be inalienable. One of those is the First Amendment, which strongly protects criticism of the government, including (but not limited to) setting the Stars and Stripes on fire.

The entirety of Daines' proposed amendment is this: the removal of Congress' gloves, allowing it to pummel the First Amendment in this specific way:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Daines isn't alone in this stupidity. The amendment has five co-sponsors: Marsha Blackburn, Mike Crapo, Shelly Capito, Kevin Cramer, and Pat Toomey. These are the six people who think the First Amendment should cover less than it already does and are willing to amend the Constitution to do it.

Let's say everyone goes straight fucking insane and this amendment is appended to the Constitution. That still won't make flag burning illegal. Congress will have to pass a law banning flag burning and get it signed by the President. Good luck. If Daines couldn't get this done in 2017 and 2019 with the then-leader of the free world agitating for jailing flag burners, it's not going to get done when there's someone a bit more rational holding the presidential pen set.

Filed Under: 1st amendment, flag burning, free speech, steve daines

Section 230 Continues To Not Mean Whatever You Want It To

from the 230-truthers dept

In the annals of Section 230 crackpottery, the "publisher or platform" canard reigns supreme. Like the worst (or perhaps best) game of "Broken Telephone" ever, it has morphed into a series of increasingly bizarre theories about a law that is actually fairly short and straightforward.

Last week, this fanciful yarn took an even more absurd turn. It began on Friday, when Facebook began to roll out test warnings about extremism as part of its anti-radicalization efforts and in response to the Christchurch Call for Action campaign. There appears to be two iterations of the warnings: one asks the user whether they are concerned that someone they know is becoming an extremist, a second warns the user that they may have been exposed to extremist content (allegedly appearing while users were viewing specific types of content). Both warnings provide a link to support resources to combat extremism.

As it is wont to do, the Internet quickly erupted into an indiscriminate furor. Talking heads and politicians raged about the "Orwellian environment" and "snitch squads" that Facebook is creating, and the conservative media eagerly lapped it up (ignoring, of course, that nobody is forced to use Facebook or to pay any credence to their warnings). That's not to say there is no valid criticism to be lodged—surely the propriety of the warnings and definition of "extremist" are matters on which people can reasonably disagree, and those are conversations worth having in a reasoned fashion.

But then someone went there. It was inevitable, really, given that Section 230 has become a proxy for "things social media platforms do that I don't like." And Section 230 Truthers never miss an opportunity to make something wrongly about the target of their eternal ire.

Notorious COVID (and all-around) crank Alex Berenson led the charge, boosted by the usual media crowd, tweeting:

Yeah, I'm becoming an extremist. An anti-@Facebook extremist. "Confidential help is available?" Who do they think they are?

Either they're a publisher and a political platform legally liable for every bit of content they host, or they need to STAY OUT OF THE WAY. Zuck's choice.

That is, to be diplomatic, deeply stupid.

Like decent toilet paper, the inanity of this tweet is two-ply. First (setting aside the question of what exactly "political platform" means) is the mundane reality, explained ad nauseum, that Facebook needs not—in fact—make any such choice. It bears repeating: Section 230 provides that websites are not liable as the publishers of content provided by others. There are no conditions or requirements. Period. End of story. The law would make no sense otherwise; the entire point of Section 230 was to facilitate the ability for websites to engage in "publisher" activities (including deciding what content to carry or not carry) without the threat of innumerable lawsuits over every piece of content on their sites.

Of course, that's exactly what grinds 230 Truthers' gears: they don't like that platforms can choose which content to permit or prohibit. But social media platforms would have a First Amendment right to do that even without Section 230, and thus what the anti-230 crowd really wants is to punish platforms for exercising their own First Amendment rights.

Which leads us to the second ply, where Berenson gives up this game in spectacular fashion because Section 230 isn't even relevant. Facebook's warnings are its own content, which is not immunized under Section 230 in the first place. Facebook is liable as the publisher of content it creates; always has been, always will be. If Facebook's extremism warnings were somehow actionable (as rather nonspecific opinions, they aren't) it would be forced to defend a lawsuit on the merits.

It simply makes no sense at all. Even if you (very wrongly) believe that Section 230 requires platforms to host all content without picking and choosing, that is entirely unrelated to a platform's right to use its own speech to criticize or distance itself from certain content. And that's all Facebook did. It didn't remove or restrict access to content; Facebook simply added its own additional speech. If there's a more explicit admission that the real goal is to curtail platforms' own expression, it's difficult to think of.

Punishing speakers for their expression is, of course, anathema to the First Amendment. In halting enforcement of Florida's new social media law, U.S. District Judge Robert Hinkle noted that Florida would prohibit platforms from appending their own speech to users' posts, compounding the statute's constitutional infirmities. Conditioning Section 230 immunity on a platform's forfeiture of its completely separate First Amendment right to use its own voice would fare no better.

Suppose Democrats introduced a bill that conditioned the immunity provided to the firearms industry by the PLCAA on industry members refraining from speaking out out or lobbying against gun control legislation. Inevitably, and without a hint of irony, many of the people urging fundamentally the same thing for social media platforms would find newfound outrage at the brazen attack on First Amendment rights.

At the end of the day, despite all their protestations, what people like Berenson want is not freedom of speech. Quite the opposite. They want to dragoon private websites into service as their free publishing house and silence any criticism by those websites with the threat of financial ruin. It's hard to think of anything less free speech-y, or intellectually honest, than that.

Ari Cohn is Free Speech Counsel at TechFreedom

Filed Under: 1st amendment, alex berenson, extremism, fact checking, free speech, section 230, speech
Companies: facebook

South Florida Cops Ran Images Of Protesters Through State's Facial Recognition Database

from the Florida-exceptionalism-extends-to-the-US-Constitution-apparently dept

Thanks to some well-targeted public records requests, the South Florida Sun-Sentinel has discovered local law enforcement deployed facial recognition tech against people engaged in protected First Amendment activity.

Like pretty much everywhere else in the nation, multiple cities in Florida saw demonstrators gather to protest police violence in the wake of the George Floyd killing. While some protests were marred by additional violence (including that perpetrated by law enforcement officers) and property destruction, many remained peaceful. But that didn't stop local agencies from running photos and footage through their systems in hopes of identifying protesters.

South Florida Sun Sentinel and Pulitzer Center journalists used Florida’s public records law to access facial recognition searches local police ran as demonstrations cascaded across Broward and Palm Beach counties in May and June 2020. Those records revealed that at least three agencies — the Broward Sheriff’s Office and the Boca Raton and Fort Lauderdale police departments — submitted more than a dozen images that referenced protests or protesters, but no crimes.

In one case, records show, police requested matching images and identifying information for a “possible protest organizer” as well as their various “associates.” In another, police ran nearly 20 searches linked to “Intelligence,” a controversial use of the technology before a crime has even been committed.

The searches were run on the state's Face Analysis Comparison & Examination System (FACES) database, which holds 25 million drivers license/ID photos, along with more than 13 million mugshots. While the Miami police department's guidelines forbid utilizing facial recognition on subjects engaged in First Amendment activity, the agencies listed above apparently have no such policies in place.

In one case, the Ft. Lauderdale police department ran multiple searches on individuals attending a Juneteenth block party. According to the obtained records, these searches were performed using search terms like "possible protester organizer" and "associate of protest organizer." The Boca Raton PD did the same thing multiple times, using "protest" as a search term.

Now that these have been made public, the involved agencies have very little to say about their surveillance of protesters.

Despite repeated questions, departments declined to discuss details regarding the FACES records, in some cases saying police personnel did not remember why searches were run. The Broward Sheriff’s Office and other agencies emphasized that a match alone would not be enough reason for an arrest.

“BSO uses FACES as an investigative tool,” said agency spokesperson Veda Coleman-Wright. An image match doesn’t “give investigators probable cause for an arrest, but it may provide them with a lead to move their investigation forward.”

Hey, BSO: so what? That's no excuse for running searches targeting peaceful protesters, which is what appears to have happened. Law enforcement officers shouldn't be trolling facial recognition databases using images of people who aren't suspected of committing crimes. That should be the case whether or not they're engaged in constitutionally protected activity. And the BSO -- along with every other law enforcement agency in Florida -- should have policies in place that make it clear that surveilling protesters is a violation of their rights and will result in severe discipline.

But instead of any agency admitting mistakes or offering to revamp facial recognition guidelines, police officials are engaging in obfuscation.

When asked for comment or records, Fort Lauderdale police provided two mostly-blank incident reports linked to FACES searches. A police spokesperson said Alexis or Holness “cannot be found in our database.” The agency provided documents, but declined to elaborate. “We will not be answering any questions,” said Fort Lauderdale Police spokesperson DeAnna Greenlaw.

Without stronger policies in place -- along with state-mandated reporting requirements on facial recognition use by agencies -- this sort of thing is going to happen again and again.

Filed Under: 1st amendment, faces, facial recognition, florida, protests

Florida Steps Up To Defend Its Unconstitutional Social Media Law And It's Every Bit As Terrible As You'd Imagine

from the discredited-nonsense-cited dept

About a month ago, the governor of Florida signed a showboating bill into law -- one that made it illegal to deplatform people running for office. Well, mostly. It exempted "theme park-associated" websites from the bill to appease the state's Disney overlords, but subjected every other site accessible in Florida to First Amendment violations in the form of compelled speech.

The absurdly unconstitutional bill was immediately challenged. NetChoice and CCIA beat everyone else to the courthouse, suing the state to block the law from being enforced. The plaintiffs pointed out the obvious flaws in the bill, as well as its hypocritical exemption of Disney sites from enforcement. It also pointed out this new law was nothing more than performance art that used both the First Amendment and Section 230 as expendable foot soldiers in Governor Ron DeSantis' war on imagined anti-conservative bias. The following is from NetChoice/CCIA's request for an injunction:

Rather than preventing what it calls “censorship,” the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis’ own press release that touts the Act as a means to “tak[e] back the virtual public square” from “the leftist media and big corporations,” who supposedly “discriminate in favor of the dominant Silicon Valley ideology.” The Governor’s press release also leaves no doubt about the Legislature’s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that “our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, [this] … will not be tolerated.”

The state has filed its response [PDF] to CCIA/NetChoice's challenge of the law's constitutionality. And it's just as dumb and wrongheaded as the law that made the state's courtroom presence necessary.

It starts out awful and only gets worse from there.

After years of unprecedented growth by social media platforms, Florida enacted a first-of-its-kind consumer protection law, Senate Bill 7072 (the “Act”), which takes aim at unfair and deceptive business practices by these platforms. The public record is replete with instances of their arbitrary and bad faith content moderation, only some of which are documented in the appendix to this brief. Moreover, the social media behemoths’ power to silence both on their platforms and throughout society has given rise to a troubling trend where a handful of corporations control a critical chokepoint for the expression of ideas. Such unprecedented power of censorship is especially concerning today, when most individuals use social media to obtain their news and government officials harness such mediums to reach the public. The Act seeks to rein in abuse of this power and ensure the widespread dissemination of information from a multiplicity of sources—a governmental objective of the highest order that promotes values central to the First Amendment.

So, it's a "consumer protection law" that only protects people running for office from "tech giants" and only if those "tech giants" aren't Disney or Universal or anyone else who might own a theme park in Florida. That sets the stage for the immense amount of stupidity readers (and the court) will be subjected to.

The immense amount of stupidity arrives in the very next sentence.

In seeking the extraordinary remedy of a pre-enforcement preliminary injunction, Plaintiffs ask the Court to grant them a First Amendment right to disable Florida from even starting the work of preserving the First Amendment rights of its citizens through this law.

Forcing websites to carry users' content is the exact opposite of "preserving First Amendment rights." Sites refusing to carry certain users' content is exactly the First Amendment. When a private company says take your content elsewhere, no one's First Amendment rights are violated.

Dumb, meet dumber.

The law merely prevents online platforms from using their vast powers to distort and suppress the messages of those speakers, leaving platforms free to speak with their own voices and largely free to adopt terms of service as they wish, requiring only that they enforce those terms consistently.

It takes an amazing amount of cognitive dissonance to say that forcing platforms to carry content leaves them "free to speak with their own voices." If a platform says "this content sucks and we won't be its conduit" and the government says "you must carry this content you feel sucks," the platform is forced to speak in the government's voice, rather than its own.

And as for "enforce terms consistently," there's a Pandora's box of subjective interpretation no one should willingly want to open. Case in point, Governor DeSantis' best buddy -- former president Donald Trump -- routinely violated the Twitter Rules but Twitter left his tweets up because he was the nominal leader of the free world and his tweets were considered newsworthy and of public interest. Had Twitter enforced its terms of use consistently, Trump would have been perma-banned long before he actually was.

Dumber and dumber and dumber:

Indeed, given the massive power that social media companies wield over the speech of their users, Florida’s efforts to prevent them from suppressing the speech of Florida’s citizens is little different from traditional common carrier regulation long thought to be constitutionally permissible.

Oh, this bullshit argument again. Trying to equate Facebook with AT&T is a non-starter. Common carriers do not prevent users from saying whatever they want. But neither do they provide platforms for speech that can reach any other user who uses the same service. Common carriers do not moderate content because they are not in the user-generated content business. They are the streets, to use an overused analogy. They are not the billboards alongside the road.

Just brain embolism-triggering levels of stupidity.

Nor is the Act preempted by Section 230 of the Communications Decency Act; Plaintiffs grossly overread that provision as establishing a law-free zone over the entire Internet, even where the regulation in question would promote rather than restrict free expression.

What the fuck is this word salad. Section 230 simply allows companies to make moderation decisions without worrying about being sued for content created by users, whether the content stays up or is taken down. The immunity was added to the Communications Decency Act to encourage active moderation of user-generated content. And, once again, the "regulation in question" does nothing to "promote free expression." What it actually does is allow the Florida government to determine what content platforms must carry.

That's just the first two pages of the 61-page response. But it's enough to show how badly the state is misunderstanding both the First Amendment and Section 230. And the rest of the response shows how deliberately the state is misunderstanding both of these issues.

Here's just one example of the disingenuousness of the state's arguments, pulled from First Amendment lawyer Ari Cohn's two detailed Twitter threads about the state's response. Here's the state's statement in its response:

To be sure, some courts have read Section 230(c)(1) to confer immunity whenever an interactive computer service exercises any of a publisher's "traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content."

Here's Cohn's acidic response to the state's attempt to portray the issue as unsettled:

To be sure, saying "some courts" is a clever way to try to minimize "damn near all of them." But that's not going to fool the court. At the end of the day, 230(c)(1) applies to the editorial discretion to post or remove content.

And if you can't find enough to work with in Cohn's twin threads (one for the First Amendment and one for Section 230), click on over to Eric Goldman's website where he breaks down thirty-one bogus assertions by Florida's government and provides counterpoints and counterarguments for every single one of them.

This is bad legislating compounded by bad lawyering. But, to be fair to the lawyers, they're being paid to advance the state's agenda, even when the state is so clearly in the wrong that only those dying of Kool Aid-enabled cyanide poisoning think these arguments have merit. Compounding the wrongness of the law is the state legislators' decision to create a carve out for companies they wish to appease, which clearly indicates this isn't about equal protection for political hopefuls but rather a way for DeSantis and his buddies to punish tech companies for their perceived bias.

Filed Under: 1st amendment, content moderation, florida, social media
Companies: ccia, netchoice

DOJ Seizes Iranian News Org Websites; Raising Many Questions

from the seems-like-a-problem dept

Over the years, we've had many, many concerns about the US government seizing websites as it generally raises 1st Amendment issues (it's not unlike seizing a printing press). Of course, non-US citizens outside the US are not protected by the 1st Amendment, but that doesn't mean we shouldn't be concerned when the US government seizes news websites tied to foreign governments, even those with hostile interests to the US, like Iran. But that's exactly what happened.

When people first started tweeting about this, and showing the graphic that had replaced the websites, many people insisted that it was actually a hack rather than a US government takedown, but the DOJ has now confirmed that they did, in fact, seize these sites.

The DOJ claims they actually grabbed 33 such websites:

Today, pursuant to court orders, the United States seized 33 websites used by the Iranian Islamic Radio and Television Union (IRTVU) and three websites operated by Kata’ib Hizballah (KH), in violation of U.S. sanctions.

On Oct. 22, 2020, the Office of Foreign Assets Control (OFAC) designated IRTVU as a Specially Designated National (SDN) for being owned or controlled by the Islamic Revolutionary Guard Corps Quds Force (IRGC). SDNs are prohibited from obtaining services, including website and domain services, in the United States without an OFAC license. According to OFAC, the designation of IRTVU as an SDN was in response to the Iranian regime targeting the United States’ electoral process with brazen attempts to sow discord among the voting populace by spreading disinformation online and executing malign influence operations aimed at misleading U.S. voters. OFAC’s announcement explained that components of the government of Iran, to include IRTVU and others like it, disguised as news organizations or media outlets, targeted the United States to with disinformation campaigns and malign influence operations. 33 of the websites seized today were operated by IRTVU. The 33 domains are owned by a United States company. IRTVU did not obtain a license from OFAC prior to utilizing the domain names.

Three additional websites seized today were operated by KH. On July 2, 2009, OFAC designated KH an SDN, and the Department of State designated KH a Foreign Terrorist Organization. The announcements described KH as an Iraqi terrorist organization that committed, directed, supported or posed a significant risk of committing acts of violence against Coalition and Iraqi Security Forces. OFAC further explained that the IRGC provides lethal support to KH and other Iraqi Shia militia groups who target and kill Coalition and Iraqi Security Forces. The three domains operated by KH were owned by a United States company. KH did not obtain a license from OFAC prior to utilizing the domain names.

Of course, just last fall we had a similar story of the US government seizing domains that it said were spreading Iranian disinformation. We were concerned then and we remain concerned now.

First off, as Jameel Jaffer notes, while foreign governments have no right to spread disinformation, the 1st Amendment also does cover a right to receive information from abroad, and it seems like this could violate that.

But, even more to the point, this seems unlikely to end well. Governments seizing websites seems like the kind of thing that could escalate in ways that will backfire. Perhaps US companies will be protected, with most of their sites registered and hosted in the US, but especially with regards to some more exotic top level domains, that are technically country codes of foreign countries, you could certainly see efforts to similarly seize the domains of US companies in retaliation.

Filed Under: asset seizures, doj, domain seizure, fbi, iran, news websites, propaganda, website seizures, website takedowns

Fuck This Cheer In Particular Says The Supreme Court In Decision Upholding Students' Free Speech Rights

from the blowing-tax-dollars-on-juvenile-f-bombs-like-a-boss dept

A high school student's quest to say "fuck cheer" in a semi-crowded convenience store has reached its end. The origin of this journey -- which began all the way back in 2017 -- was nothing more than a high school student doing high school stuff.

Posing in street clothes with a friend, middle fingers raised, B.L. took a “selfie” at the Cocoa Hut, a local store and student stomping ground. On top of the photo, B.L. added the following text: “fuck school fuck softball fuck cheer fuck everything.” B.L. then posted the captioned photo—the “Snap”—on her private Snapchat account, where it could have been viewed briefly by about two-hundred and fifty (250) of her friends.

For that, B.L. was booted off the cheerleading team she had very briefly disparaged and suspended from cheer activities for a year. She sued. And she won. A Pennsylvania federal court said the student's off-campus speech was protected, seeing as it was not provably disruptive and -- the court reminded the school -- it had occurred off-campus. The school's limitations of student's rights didn't reach that far. And even if the student had agreed to a code of conduct for extracurricular activities, the court said the agreement -- one that couldn't be altered and forced students to give up rights if they wanted to participate in extracurricular activities -- was coercive, rather than equitable.

The school appealed. And lost again. The Third Circuit Appeals Court upheld the lower court's ruling, pointing out that accepting the school's arguments would encourage administrators to become censors of students' speech, no matter where that speech occurred.

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism.

The school appealed again. And it has lost. Again. This time the loss really counts because this time it happened in the highest court in the land.

The Supreme Court's decision [PDF] upholds students' free speech rights, but applies this ruling very narrowly to the facts at hand. But even though the finding is narrow, it encourages schools to err on the side of caution (and students' rights), rather than simply assume anything that doesn't fit the facts of this case is acceptable.

The Supreme Court doesn't go as far as the Third Circuit Appeals Court, which pretty much said all off-campus speech is protected. Instead, it sets out guidelines for when it may be permissible for schools to regulate off-campus speech, such as bullying, harassment, threats, and use of school websites.

The limits placed on schools when it comes to off-campus speech are the following:

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.”

Schools still have an obligation to respect students' rights. And only rarely should they expect to usurp a parent when dealing with off-campus speech. Most importantly, schools should teach students to respect free speech rights by… respecting students' free speech rights. Seems simple enough.

These guidelines are directed at both schools and the nation's courts. Schools need to ensure they minimize their policing of off-campus speech. Courts need to consider these guidelines when handling cases involving punishment of off-campus speech. There's no bright line created here. There's simply a lot more clarification of the issue at hand.

The decision makes short work of the excuses the school offered for its punishment of B.L.'s off-campus speech. Although the school is allowed to punish students for "vulgar speech," its jurisdiction is very limited.

The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time.

The court says the school also stepped on the student's parent's toes by punishing B.L.

B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut. Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.

The court also says the "disrupted school" excuse is no better. There was no evidence presented by the school of any disruption other than "5-10 minutes of an algebra class" for a couple of days after the Snapchat was posted.

That's it. B.L. -- more than four years after the fact -- wins. So do students all over the United States who now have the benefit of these speech regulation guidelines from the nation's top court. And it's all due to the tireless efforts of the little school that couldn't, Mahanoy Area High School.

(Oh, and if you're interested, there's a dissent by Clarence Thomas that should be read in a Principal Skinner "No, it's the children who are wrong" voice and which basically says that in an era of social media platforms that can be accessed anywhere, students' speech should have fewer protections, rather than more.)

Filed Under: 1st amendment, cheerleader, free speech, fuck this, off-campus speech, schools, supreme court