Supposed 'Free Speech' Warrior Jordan Peterson Sues University Because Silly Professor Said Some Mean Things About Him

from the the-intellectual-derp-web dept

I have to admit that until earlier this year, I'd never heard of Jordan Peterson. I first heard about him when he was on Russ Robert's Econtalk podcast, and it was sort of a weird discussion to go into blind, without any knowledge of Peterson. That's because throughout the podcast I found him to be extremely defensive, as if he was constantly under attack and had to parry away an onslaught of criticism. Other than that, I thought he had a few interesting ideas, mixed in with some nutty ideas. Soon after, I suddenly seemed to be hearing about him everywhere. In the last two months, the NY Times did a giant profile on him (in which he does not come off very well). He then played a major role in another bizarre and silly profile of what has been dubbed the "Intellectual Dark Web" -- a network of hilariously self-important people who seem to think they're oppressed for having thoughts out of the mainstream... even though the NY Times article goes on to describe how they all (with Peterson leading the pack) have massive followings, pack stadiums, sell insane numbers of books, and make crazy amounts of money from crowdfunding.

A core piece of that NY Times editor Bari Weiss article was the ill-supported claim that "free speech is under siege" and that these members of the "Intellectual Dark Web" were the renegades being shunned for speaking the truth that no one wanted to hear. To me, it seemed more like they were a bunch of self-important semi-hucksters who lots and lots of people were listening to, but who some people have criticized -- and they take that to mean that free speech is under attack. The more I read and watched about Peterson in particular, the more frustrating everything around him became. He certainly spews a lot of pseudo-intellectual nonsense, but so do many of the people who are angry at him. Many of the critiques of Peterson are, at best, sloppy and inaccurate. And Peterson has perfected playing the obtuse victim.

He's obviously very intelligent and is able to key in on the inaccurate representations of him, and uses that as a wedge to try to discredit those who are criticizing him. But the debates always seem to be more about misunderstanding both sides, and Peterson often appears to embrace the idea that he's a victim in all of this because people do such a poor job attacking his ideas (even if they're nutty and borderline nonsensical). This now famous interview between Peterson and Channel 4's Cathy Newman is a good example of this -- as is the also famous video of Peterson debating some angry students. In both cases, the criticisms that people are making of Peterson's ideology and viewpoints are a caricature -- and Peterson seizes on the misrepresentations, but does so in a fascinating way. Rather than trying to increase understanding and agreement, both sides just dig in and speak entirely at cross purposes. It's entertaining for people who support Peterson, who get to mock the silly misrepresentations of his critics, as well as for those who dislike Peterson, who get to mock his appearance of evading and sidestepping direct questions. It's all theater, and no one comes out of these any wiser. No one is trying to move towards more understanding. They all seem to embrace the misunderstanding as evidence of just how wrong the other side is.

Of course, part of the irony is that as he's perfected playing victim to what he (perhaps reasonably) considers to be unfair criticism, he seems to be adapting the very same stance that he accuses "the radical left" and "snowflakes" of embracing: he becomes quite intolerant of his critics. And now it's reached a new level of ridiculousness (again on all sides) with Peterson suing Wilfrid Laurier University for defamation. It's not often you see people who claim to be free speech warriors suing people for defamation, and especially not just because they said some not nice stuff about him. But, it appears that Peterson is really trying to come out as both a free speech defender... and a victim of free speech at the same time.

And, to be clear, the actions of Wilfrid Laurier University are completely preposterous and deserve to be mocked widely as they have been. It involved a teaching assistant at the school, Lindsay Shepherd, who had showed a clip of Peterson discussing gender pronouns (a topic that Peterson has strong feelings about) in a class. Shepherd does not appear supportive of Peterson's position, but was clearly using the clip to inspire a conversation. That seems laudable. What seems preposterous is what happened next: Shepherd was pulled into a disciplinary hearing and basically told that merely playing video of a public debate of Peterson potentially violated the human rights of students and was the equivalent of playing a clip of Hitler. Shepherd recorded the meeting and it's incredibly stupid. Shepherd, quite reasonably points out what she was trying to do, and the administrators come off as a caricature of the overly politically correct morons that some people (incorrectly) assume run every campus these days. Listening to the whole thing, is painful. Shepherd comes out looking reasonable. The school looks ridiculous. Indeed, the school apologized last fall soon after the audio of her meeting went viral.

Last week Shepherd sued the University herself, with claims of harassment, intentional infliction of nervous shock, negligence and constructive dismissal. It's interesting to note that within the filing, Shepherd's suit directly claims that the professors and administrators in the meeting with her defamed Peterson with their inaccurate portrayals of Peterson. Her own lawsuit, though, does not have any defamation claims.

And, then, this week, Peterson filed his suit -- employing the same lawyer as Shephard. In a statement, Peterson claims that he decided to do so after seeing Shepherd's lawsuit and speaking with her lawyer. Again, irony abounds, as his statement sounds quite a bit like those he was criticizing -- stating that he hopes this makes them think twice before saying mean things about him. He first says he decided to file the lawsuit because he felt that the university "had learned very little from its public embarrassment," and therefore apparently needed the power of the state to fine them for their own speech? That seems... very unlike a "free speech warrior." And then there's this:

I thought that two lawsuits might make the point, better than one. I'm hoping that the combination of two lawsuits might be enough to convince careless university professors and administrators blinded by their own ideology, to be much more circumspect in their actions and their words.

That... does not seem like someone who is a free speech warrior. That... does not seem like someone who believes in open debate. Even as ridiculous and silly as the University's actions were -- and they deserve tremendous mockery for their hysterical and bizarre response to Shepherd's lesson -- responding by suing for defamation is crazy. Canada, unfortunately, has defamation laws that strongly favor the plaintiff making the claims -- unlike in the US where we have a strong First Amendment -- but already experts seem to be suggesting his case is unlikely to succeed. If it were filed in the US, based on what I listened to of the meeting between Shepherd and the professors/administrators at the university, the lawsuit would be laughed out of court, and would be blasted as a censorial attempt to silence someone for protected speech, even if that speech is nonsense. Unfortunately, I have not yet been able to read the full complaint by Peterson as it does not appear to be readily available, so at this point I am only going off of the source material of the recording that Shepherd made, along with the claims that it is the content of that recording that is the basis of Peterson's defamation claims. If there is something more in the actual complaint, I would be happy to revise my opinion of the situation.

The whole thing seems ridiculous, frankly, as with so many of the debates around Peterson. Lots of people are making silly arguments and talking at cross purposes. Almost everyone comes off looking silly. However, just because debates get silly and heated, or just because some professors or teachers make silly claims, the idea of running to the courts and crying defamation, while directly claiming you hope the lawsuit will silence other professors at other universities certainly suggests that Peterson is no friend to free speech.

And this brings us back around to the whole "Intellectual Dark Web" thing. This case suggests the same ridiculous pattern. This is not deep thinkers being oppressed for their heretical great ideas. These are insecure, thin-skinned people with silly ideas, playing victim when other silly people make silly statements about them. Everyone gets to play victim. No one seeks to actually build up more understanding or reasoned debate. Instead, everyone just gets to dig in on their own silly positions. It's not the Intellectual Dark Web. It's the Intellectual Derp Web. And now it's attacking free speech, while pretending to be staunch defenders of free speech. Derp.

Filed Under: arguments, canadan, criticism, defamation, free speech, intellectual dark web, intellectual derp web, jordan peterson, lindsay shepherd, nuance
Companies: wilfrid laurier university

EU Parliamentary Committee Votes To Put American Internet Giants In Charge Of What Speech Is Allowed Online

from the bad-news dept

As we've been writing over the past few weeks, the EU Parliament's Legal Affairs Committee (JURI) voted earlier today on the EU's new Copyright Directive. Within that directive were two absolutely horrible ideas that are dangerous to an open internet -- a link tax and a mandatory copyright filtering requrement (i.e., the "censorship machines" proposal). While there was a big fight about it, and we heard that some in the EU Parliament were getting nervous about it, this morning they still voted in favor of both proposals and to move the entire Copyright Directive forward. The vote was close, but still went the wrong way:

Somewhat incredibly, no official rollcall tally was kept. MEP Julia Reda, however, has posted an unofficial roll call of who voted against internet freedom, showing (graphically) whether they voted for the link tax and/or censorship machines:

In case you can't see that here's who voted according to Reda's list -- most voted for both of the bad proposals, but for the few who didn't vote for the link tax, I've noted that separately. These politicians deserve to (1) be called out for trying to destroy an open internet and give in to legacy industries who want to censor the internet and (2) voted out of office next election:

• Axel Voss, Germany (who was in charge of this entire thing and who has regularly played dumb whenever people point out just how bad these proposals are. He appears completely beholden to legacy industry interests). Voss's name should become synonymous with the destruction of a free and open internet.
• Pavel Svoboda, Czech Republic (voted for censorship machines, but not the link tax)
• Rosa Estaras Ferragut, Spain
• Tadeusz Zwiefka, Poland,
• Jozsef Szajer, Hungary
• Francis Zammit Dimech, Malta
• Luis de Grandes Pascual, Spain
• Enrico Gasbarra, Italy
• Mary Honeyball, UK
• Jean-Marie Cavada, France
• Marinho e Pinto, Portugal
• Sajjad Karim, UK (voted for censorship machines, but not the link tax)
• Joelle Bergeron, France
• Marie-Christine Boutonnet, France
• Gilles Libreton, France

Note those last two votes from France, as Lebreton and Boutonnet are both members of the French National Front party, the same party whose leader, Marine Le Pen, has been out and about screaming about how unfair it is that the party's YouTube channel was deleted by automatic copyright filters -- the same filters that her own party just voted to make mandatory for all platforms. Incredible.

This is a hugely unfortunate series of events. Having the proposal approved by the JURI Committee makes it much, much harder to stop this Directive from becoming official. But it is not the end of the road. Reda will be forcing a vote from the entire EU Parliament on the issue:

This is an unacceptable outcome that I will challenge in the next plenary session, asking all 750 MEPs to vote on whether to accept the Committee’s result or open it up for debate in that larger forum, which would then give us a final chance to make changes.

This vote will likely happen on July 4. Let’s make this the independence day of the internet, the day we #SaveYourInternet from censorship machines and a link tax. Are you in?

The digital freedom group EDRi has also detailed the next steps in this process and created an infographic showing what still needs to happen:

It will be difficult to stop this freight train after this morning's vote, but not impossible. If you want to see the internet remain viable as a communications platform, rather than seeing it locked down as the new broadcast television, in which giant American companies have the final say in what you're allowed to say online, you should probably let the EU Parliament know sooner, rather than later.

Filed Under: article 11, article 13, axel voss, censorship machines, copyright, copyright directive, eu, eu copyright directive, eu parliament, filters, juri, link tax, mandatory filters, snippet tax

Tanzania Forces 'Unregistered Bloggers' To Disappear Themselves

from the the-internet-enemy dept

The internet is many things to many people. Some of these things are good, while others are bad. Still, it should be fairly uncontroversial to say that the internet has generally done a good job of empowering ordinary people. With the advent of a platform sans gatekeepers, millions of people suddenly had a voice that they would not otherwise have been afforded. The result of this has been the explosion in blogs, podcasts, forums, and other outlets. The internet brings the ability to reach others and that has resulted in an explosion of thought and speech.

It will come as no surprise that plenty of national governments throughout the world aren't huge fans of their people suddenly having this sort of voice and reach. After all, that kind of free expression can often times come in the form of critiques of those very governments, and that kind of reach can create movements of dissent. You may recall back in April when Glyn Moody detailed Tanzania's attempt to tamp down this critical speech by forcing bloggers to register with the government at a cost greater than the average per capita income of its citizens. While this was a fairly naked attempt to keep the voices of its citizens from being heard, Glyn pointed out that the Tanzanian government was at least attempting to be cynically subtle about it.

The current Tanzanian government is not very happy about this uncontrolled flow of information to the people. But instead of anything so crude as shutting down blogs directly, it has come up with a more subtle, but no less effective, approach.

What a difference a few months make in the actions of an authoritarian regime. It seems this more subtle approach did not have the desired effect, as the Tanzanian government has now ordered that all unregistered bloggers simply shut themselves down or face criminal prosecution.

Tanzania ordered all unregistered bloggers and online forums on Monday to suspend their websites immediately or face criminal prosecution, as critics accuse the government of tightening control of internet content. Several sites, including popular online discussion platform Jamiiforums, said on Monday they had temporarily shut down after the state-run Tanzania Communications Regulatory Authority (TCRA) warned it would take legal action against all unlicensed websites.

Digital activists say the law is part of a crackdown on dissent and free speech by the government of President John Magufuli, who was elected in 2015. Government officials argue the new rules are aimed at tackling hate speech and other online crimes, including cyberbullying and pornography.

If this all sounds familiar to you, it should, because actions like these were very much the precursors to the Arab Spring. These types of attempts to control the internet, a platform that is well-designed to route around this type of control, rarely work for exactly that reason. People will generally find a way if they are motivated enough, which is what makes trying to disappear dissent a government's first reaction so potentially disastrous.

Critics of this move are predicting the demise of Tanzanian blogging.

The Paris-based Reporters Without Borders group has said the new online content rules “will kill off Tanzania’s blogosphere”.

Perhaps that's right. Or, perhaps, a move like this does more to spell the end of an authoritarian regime than the demise of a commonplace internet function that is ingrained into the human spirit.

Filed Under: bloggers, free speech, registration, tanzania

UN Free Speech Expert: EU's Copyright Directive Would Be An Attack On Free Speech, Violate Human Rights

from the don't-let-it-happen dept

We've been writing a lot about the EU's dreadful copyright directive, but that's because it's so important to a variety of issues on how the internet works, and because it's about to go up for a vote in the EU Parliament's Legal Affairs Committee next week. David Kaye, the UN's Special Rapporteur on freedom of expression has now chimed in with a very thorough report, highlighting how Article 13 of the Directive -- the part about mandatory copyright filters -- would be a disaster for free speech and would violate the UN's Declaration on Human Rights, and in particular Article 19 which (in case you don't know) says:

Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

As Kaye's report notes, the upload filters of Article 13 of the Copyright Directive would almost certainly violate this principle.

Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful. Although the latest proposed versions of Article 13 do not explicitly refer to upload filters and other content recognition technologies, it couches the obligation to prevent the availability of copyright protected works in vague terms, such as demonstrating “best efforts” and taking “effective and proportionate measures.” Article 13(5) indicates that the assessment of effectiveness and proportionality will take into account factors such as the volume and type of works and the cost and availability of measures, but these still leave considerable leeway for interpretation.

The significant legal uncertainty such language creates does not only raise concern that it is inconsistent with the Article 19(3) requirement that restrictions on freedom of expression should be “provided by law.” Such uncertainty would also raise pressure on content sharing providers to err on the side of caution and implement intrusive content recognition technologies that monitor and filter user-generated content at the point of upload. I am concerned that the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody.

Kaye further notes that copyright is not the kind of thing that an algorithm can readily determine, and the fact-specific and context-specific nature of copyright requires much more than just throwing algorithms at the problem -- especially when a website may face legal liability for getting it wrong. And even if the Copyright Directive calls for platforms to have remediation processes, that takes the question away from actual due process on these complex issues.

The designation of such mechanisms as the main avenue to address users’ complaints effectively delegates content blocking decisions under copyright law to extrajudicial mechanisms, potentially in violation of minimum due process guarantees under international human rights law. The blocking of content – particularly in the context of fair use and other fact-sensitive exceptions to copyright – may raise complex legal questions that require adjudication by an independent and impartial judicial authority. Even in exceptional circumstances where expedited action is required, notice-and-notice regimes and expedited judicial process are available as less invasive means for protecting the aims of copyright law.

In the event that content blocking decisions are deemed invalid and reversed, the complaint and redress mechanism established by private entities effectively assumes the role of providing access to remedies for violations of human rights law. I am concerned that such delegation would violate the State’s obligation to provide access to an “effective remedy” for violations of rights specified under the Covenant. Given that most of the content sharing providers covered under Article 13 are profit-motivated and act primarily in the interests of their shareholders, they lack the qualities of independence and impartiality required to adjudicate and administer remedies for human rights violations. Since they also have no incentive to designate the blocking as being on the basis of the proposed Directive or other relevant law, they may opt for the legally safer route of claiming that the upload was a terms of service violation – this outcome may deprive users of even the remedy envisioned under Article 13(7). Finally, I wish to emphasize that unblocking, the most common remedy available for invalid content restrictions, may often fail to address financial and other harms associated with the blocking of timesensitive content.

He goes on to point -- as we have -- that while large platforms may be able to deal with all of this, smaller ones are going to be in serious trouble:

I am concerned that the proposed Directive will impose undue restrictions on nonprofits and small private intermediaries. The definition of an “online content sharing provider” under Article 2(5) is based on ambiguous and highly subjective criteria such as the volume of copyright protected works it handles, and it does not provide a clear exemption for nonprofits. Since nonprofits and small content sharing providers may not have the financial resources to establish licensing agreements with media companies and other right holders, they may be subject to onerous and legally ambiguous obligations to monitor and restrict the availability of copyright protected works on their platforms. Although Article 13(5)’s criteria for “effective and proportionate” measures take into account the size of the provider concerned and the types of services it offers, it is unclear how these factors will be assessed, further compounding the legal uncertainty that nonprofits and small providers face. It would also prevent a diversity of nonprofit and small content-sharing providers from potentially reaching a larger size, and result in strengthening the monopoly of the currently established providers, which could be an impediment to the right to science and culture as framed in Article 15 of the ICESCR.

It's well worth reading the whole thing. I don't know if this will have more resonance with the members of the EU Parliament's Legal Affairs Committee, but seeing as they keep brushing off or ignoring most people pointing out these very same points, one hopes that someone in Kaye's position will at least get them to think twice about continuing to support such a terrible proposal.

Filed Under: article 13, copyright, copyright directive, david kaye, eu, free speech, intermediary liability, monitoring, un, upload filters

French President Pushing 'Fake News' Bill That Would Demand Decisions From Judges In 48 Hours

from the 48-hours-or-your-violated-rights-are-free dept

France's government will likely be following Germany's into the halls of speech regulation infamy. Germany's new "hate speech" law backed 24-hour removal demands with hefty fines to ensure social media platform compliance. This has prompted proactive enforcement by Twitter and Facebook, resulting the removal of content that doesn't violate the law, along with the removal of satire's life support.

The French government is already eyeballing a carbon copy of this hate speech law. But it's willing to do Germany one better: it wants to regulate "fake news." This push comes from new president Emmanuel Macron, who's decided to make his personal beef with fake news a public concern. A false story about offshore accounts owned by Macron made its way around the internet during his presidential campaign, prompting him to declare war on "fake news" if he was elected.

He's been elected, and now appears to be abandoning the base that thought he would be less radical and more reasonable than many of his opponents.

Taking aim at so-called fake news, France’s Parliament on Thursday is set to begin debating a tough bill aimed at repressing phony news items, one pushed by President Emmanuel Macron amid criticism that it poses a potential threat to press freedom.

The measure would allow judges to block content deemed false during a three-month period preceding an election.

During elections, it appears normal speech protections will be disabled. And it will be France's court system doing the heavy lifting under duress. The law would force judges to make a call on suspected "fake news" within 48 hours of the government submitting its case. Forty-eight hours is a ridiculous turn time for judicial matters, which makes it extremely likely literal judgment calls will be blown and/or overblocking will occur.

This also allows the French government to make the initial declaration of a news item's veracity. Forty-eight hours is barely enough time to read the government's case and pass a judgment, much less provide any due process to those accused of faking their news. Anyone who can't find something wrong with the general idea of a government declaring certain speech bogus and placing it before a judge with ticking time is either a budding authoritarian or Emmanuel Macron.

Unfortunately for Macron, the not-so-very-enlightened president is going to have a hard time shoving this terrible idea down parliament's throat. He's getting shot from both sides during his push to harm free speech protections and journalists.

[I]n heated exchanges in parliament on Thursday, members of the rightwing Les Républicains party accused Macron of trying to create a “thought police” that threatened freedom of expression. The leftwing France Insoumise party warned of a new kind of censorship and cautioned against a hasty, unnecessary and ineffective law against an ill-defined concept of fake news.

France's culture secretary said these fears were overblown as was any perceived attack on journalists. But the law Macron is pushing would do exactly what the culture secretary denies it will do. Supposedly "professional media" won't be targeted. But how can that statement possibly be true?

Social networks would also have to clearly state who was sponsoring content. The law would also give the French media regulator new powers to remove broadcasters’ rights to air content in France if it is deemed to be deliberately fake or implausible. Foreign broadcasters could be taken off air if they were deemed to be attempting to destabilise France, a measure taken to be aimed at Russian state-backed outlets.

Even if the culture secretary is to be believed, this just means the government will decide who is or isn't a journalist after the law is passed -- most likely on a case-by-case basis that allows it to target those perceived of being less able to challenge a judicial determination. Journalism isn't something only big name news agencies do. Plenty of amateurs engage in journalism and it will be those without privilege or access who can most easily be silenced by the government's "fake news" accusations.

Filed Under: censorship, emmanuel macron, fake news, france, free speech

High School Student's Speech About Campus Sexual Assault Gets Widespread Attention After School Cuts Her Mic

from the streisand-high dept

It's that time of year when kids are graduating from high school, and the age old tradition of the valedictorian speech is happening all around the country. While exciting for the kids, families and other students, these kinds of speeches are generally pretty quickly forgotten and certainly tend not to make the national news. However, in nearby Petaluma, California, something different is happening, all because a bunch of spineless school administration officials freaked out that the valedictorian, Lulabel Seitz, wanted to discuss sexual assault. During her speech, the school cut her mic when she started talking about that issue (right after talking about how the whole community had worked together and fought through lots of adversity, including the local fires that ravaged the area a few months back). Seitz has since posted the video of both her mic being cut off and then with her being filmed giving the entire speech directly to a camera.

And, of course, now that speech -- and the spineless jackasses who cut the mic -- are getting national news coverage. The story of her speech and the mic being cut has been on NPR, CBS, ABC, CNN, Time, the NY Post, the Washington Post and many, many more.

In the ABC story, she explains that they told her she wasn't allowed to "go off script" (even pulling out of a final exam to tell her they heard rumors she was going to go off speech and that she wasn't allowed to say anything negative about the school) and that's why the mic was cut, even as the school didn't know what she was going to say. She also notes -- correctly -- that it was a pretty scary thing for her to continue to go through with the speech she wanted to give, despite being warned (for what it's worth, decades ago, when I was in high school, I ended up in two slightly similar situations, with the administration demanding I edit things I was presenting -- in one case I caved and in one I didn't -- and to this day I regret caving). Indeed, she deserves incredible kudos for still agreeing to give her speech, and it's great to see the Streisand Effect make so many more people aware of (1) her speech and (2) what a bunch of awful people the administrators at her school are for shutting her speech down.

As for the various administrators, their defense of this action is ridiculous. They're quoted in a few places, but let's take the one from the Washington Post:

“In Lulabel’s case, her approved speech didn’t include any reference to an assault,” [Principal David Stirrat] said. “We certainly would have considered such an addition, provided no individuals were named or defamed.”

As Seitz notes, she never intended to name names, and the school had told her so many times not to talk about these things it was obvious to her that she wouldn't have been able to give that speech if she had submitted the full version. In the ABC interview she explained that rather than just letting the valedictorian speak as normal, the school had actually told her she had to "apply" to speak.

Dave Rose, an assistant superintendent, told the Press Democrat that he could remember only one other time that administrators had disconnected a microphone during a student’s graduation speech in the past seven years, but said he believed it was legal.

“If the school is providing the forum, then the school has the ability to have some control over the message,” Rose said.

Actually, that's not how the First Amendment works. Schools can limit some things, but not if it's based on the content of the message, which appears to be the case here. Of course, I doubt that Seitz is going to go to court over this as it's not worth it, but thanks to the Streisand Effect, she doesn't need to. The world has learned about her speech... and about how ridiculous the administrators are in her school district.

Filed Under: censorship, free speech, lulabel seitz, petaluma, sexual assault, streisand effect

Police Chief Sends Officers Out To Arrest Man For Calling The Chief A 'Dirty' Cop

from the in-a-move-guaranteed-to-only-garner-more-respect-for-the-chief dept

If any state still has a criminal defamation law on the books (and there are more than you would think), it needs to get rid of it posthaste. Besides the obvious Constitutional implications, the laws act as lèse-majesté analogs wielded by powerful government officials to silence their critics.

Criminal defamation laws have been abused multiple times by law enforcement officers and their public official friends. Louisiana public officials (and the law enforcement that willingly serves them) seem especially fond of deploying a law already declared unconstitutional to harass citizens who just won't stop complaining about the actions of their public officials.

For whatever reason, New Hampshire still has a criminal defamation law on the books. It's only a misdemeanor but that's still plenty of hassle for those who've been targeted by vindictive cops. [h/t Adam Steinbaugh]

On May 23, a police officer arrested Robert W. Frese in Exeter, New Hampshire and took him to the station for booking. Frese is no stranger to law enforcement; in the past, he has been convicted of fraud, criminal trespassing, and a hit-and-run. (His vehicle was easy to track because of its notable vanity plate: TRUMP1.) But this latest arrest, Frese learned, had nothing to do with those earlier mishaps. Instead, he had been apprehended for insulting a police officer on the internet.

The facts of the case, laid out by the Seacoast Online and the criminal complaint against Frese, are straightforward. On May 3, Frese wrote a comment on a Seacoast Online article about recently retiring police officer Dan D’Amato. He believed that D’Amato had treated him unfairly and harshly criticized his alleged misconduct. He then tore into Exeter Police Chief William Shupe, declaring that “Chief Shupe covered up for this dirty cop.”

Chief Shupe had plenty of options to respond to being called "dirty" by an Exeter resident. He could have said nothing. He could have responded by calling Frese's character into question. He could have demanded proof. He could have taken his badge off and headed to the courthouse to file a civil defamation complaint just like the rest of the unwashed masses. But he did none of these things.

Instead, he arrested Frese and charged him. The arrest itself was unusual. Class B misdemeanors generally result in citations, not arrests, because no jail time is involved. But Chief Shupe had someone to punish for daring to insult a public official, so an arrest was carried out. Shupe got his man -- and a planned arraignment -- but that's as far as this bogus criminal defamation case is going. (h/t Eugene Volokh)

Citing a review by the New Hampshire attorney general's office, Exeter police dropped the criminal defamation charge against Robert Frese for online comments he made accusing the police chief of "covering up for a dirty cop."

In a press release issued Thursday afternoon, Exeter police said "In further review by the attorney general's office of the facts of this case and the law, it is their opinion that the state would not prevail at trial. After careful consideration of all the opinions involved, the Exeter Police Department has decided to nolle prosse the charge."

This is what tends happens when someone other than an aggrieved party -- in this case, the town's police chief -- gets involved. The stupidity of the arrest is exposed by the law being read in the context of the situation. If anything is definitively protected by the First Amendment, it's political debate. An angry man venting about perceived police corruption is part of that debate. Whether or not Chief Shupe is actually corrupt remains to be seen. But this vindictive arrest certainly doesn't make him appear any more trustworthy or honest.

Filed Under: criminal defamation, dirty cop, new hampshire, robert frese, william shupe

Unpublished Censorship Guidelines Lay Bare The Deepest Fears Of The Chinese Government

from the vulgar-use-of-a-microphone-controller dept

It's hardly a state secret that China is instituting the most complete surveillance and censorship system ever attempted by a society (so far), and on an unprecedented scale. Techdirt has been tracking that sad saga over the years, mostly reporting on how censorship is being implemented. Less information has been available about what exactly the Chinese government doesn't want people to know about/discuss. Aside from the obvious issues -- repression of Tibetans and Uyghurs, Tiananmen Square protests, environmental problems, government corruption etc. -- just what is Beijing afraid of? A document obtained by the The Globe and Mail may shed some light on this question, although it's still not entirely clear who wrote it:

It began circulating early this year, and is believed to have been issued by the powerful Cyberspace Administration of China, China's central Internet authority, which did not respond to requests for comment.

It's also possible that the document, which outlines 10 basic categories of banned content, was written by a government-affiliated trade association, a censorship expert said.

In any case, experts seem to accept that it represents the Chinese government's position quite well, which makes the insights it gives into official thinking extremely valuable. Forbidden activities include many that come as no surprise, such as: insulting leaders, criticizing official policies, spreading information about "made-up" accidents, epidemics, police incidents, and issues related to the economy. Celebrities are protected to a certain extent, with a ban on over-the-top stories about their sex scandals or luxurious lifestyles. Talking about violence, superstitions or religions are also out, as are the following:

Not only is pornography banned, but so is all obscenity, a category that includes "using a bed or sofa as a prop or background," appearing shirtless, wearing tattoos or dancing in a way "that has flirtatious and vulgar elements." Also forbidden is the spreading of harmful information, a category that includes cursing, smoking and drinking, gambling or "vulgar use of a microphone controller (or any mimicking of it)."

But alongside much that is outright wacky -- what on earth does "vulgar use of a microphone controller" even mean? -- the article quotes Yaxue Cao, the founder and editor of ChinaChange.org, who points out a more serious underlying strategy discernible here:

"It targets political dissent of course, but any activities that might cause a large number of people to coalesce, whether through popular entertainment such as Duanzi (jokes) and cartoons, or through direct sales network," she said, in an e-mail. "It also aims at content that might give people ideas of resistance and how-to knowledge. I go through each category, this is the theme I see: a heightened sense of regime insecurity."

It's a great point that explains much of what the Chinese government has done over the last few years. What the authorities fear above all else is not so much any of the topics mentioned above in themselves, but the thought that they might help people to band together, and even formulate an idea that is truly frightening for Beijing: that they could start to resist.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: censorship, china, guidelines

Press Wakes Up To The Fact That DNC's Lawsuit Against Wikileaks Could Harm Press Freedoms

from the dnc-stomping-on-free-speech dept

Back in April, when lots of anti-Trump folks were cheering on the decision of the Democratic National Committee (DNC) to sue various Russians and Wikileaks for hacking and publishing DNC emails, we pointed out that the lawsuit was full of some pretty crazy claims, especially those against Wikileaks. As we said, even if you really hate the role that Julian Assange and Wikileaks played in the 2016 election, the lawsuit itself could have serious ramifications on press freedom, at a time when you would think that those who don't support the President would want the press to have more freedom to report on him and the various things happening in his administration.

Thankfully, many in the media are recognizing this as well. The Committee to Protect Journalism recently put out a strong article about how this lawsuit could endanger important press freedoms:

Marcy Wheeler, an independent national security reporter who has reviewed the DNC complaint, said the legal theory behind it could be applied to other leaks such as the Panama Papers and the Paradise Papers--internal documents that were likely obtained illegally from law firms and financial institutions, and then passed to the press. Similar legal cases have already been brought in Europe. One of the law firms named in the Paradise Papers case sued the BBC and the Guardian, the BBC reported.
The DNC's argument, Wheeler said, could be replicated by the Department of Justice to target an outlet like The Intercept. "If this precedent is out there, the government would happily describe The Intercept as a co-conspirator," in the Winners or Albury leaks, she told CPJ, referring to former military contractor Reality Winners, and former FBI agent Terry Albury, whom several news outlets speculated were the sources for major leak investigations revealed by The Intercept.

Or, as I noted in my original piece, if this argument flies, what's to stop the Trump DOJ from going after any publisher (the NY Times? the Washington Post?) who gets its hands on Trump's hidden tax returns and publishes them?

This does not mean that Wikileaks is a perfect organization -- far from it. Wikileaks has a long history of problematic behavior. But that doesn't mean we should obliterate press freedoms just because Wikileaks made choices many people disagree with:

This is why CPJ has long maintained that WikiLeaks and Assange should not be prosecuted under the Espionage Act for publishing classified documents procured by someone else. WikiLeaks, however, has not always been a responsible steward of its materials. In 2011, the organization released unredacted diplomatic cables that endangered the life of the Ethiopian reporter Argaw Ashine. And in general, WikiLeak's practice of publicizing large data dumps without probing the context or motivations of leakers can render it vulnerable to manipulation, as CPJ Executive Director Joel Simon has written. Still, as CPJ wrote in a letter to the Obama administration in 2010, arresting Assange would set dangerous precedent for publishers everywhere.

Despite the challenges in dealing with large scale leaks from state hackers, it has become an increasingly routine practice. In the most recent, attorneys for Republican fundraiser Elliot Broidy filed a subpoena May 16 for documents from The Associated Press as part of a civil suit against the Qatar government, which he accuses of hacking his emails and leaking them to journalists at the AP and other news organizations. The AP told the Freedom of the Press Foundation that it intends to fight the subpoena. And the Qataris denied any role in the hack, The New York Times reported.

And, of course, all of this by the DNC plays right into the administration's hands:

The U.S. government already uses vague terminology, which is potentially damaging to publishers, to describe WikiLeaks. Last year, Secretary of State Mike Pompeo--then CIA Director--labeled WikiLeaks a "non-state hostile intelligence service." The language was also inserted into a Senate appropriations bill. Senator Ron Wyden of Oregon, who accused WikiLeaks of participating in an "attack" on American democracy, nonetheless raised alarms about the terminology. In a statement issued by his office last August, he said, "The use of the novel phrase 'non-state hostile intelligence service' may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets."

The notion that journalistic activity such as cultivating sources and receiving illegally obtained documents could be construed as part of a criminal conspiracy is, according to Goodale, the "greatest threat to press freedom today." "It will inhibit reporters' ability to get whistleblower information, because as soon as you talk to them in any aggressive fashion you could be guilty of a crime," Goodale said.

There's a lot more in the article, and the end result highlights just how problematic the lawsuit is. The DNC appears so focused on the many failures of 2016, that it has no problem taking a shotgun to the very freedoms that the press relies on to (hopefully) continue to investigate and reveal illegal activities on the part of this administration (and future administrations). It seems both incredibly short sighted and... par for the course.

Filed Under: dnc, free speech, julian assange, press freedom
Companies: wikileaks

Court Not At All Impressed By Chuck Johnson's Silly Lawsuit Against Twitter, Plans To Grant Anti-SLAPP Win To Twitter

from the slappity-slapp-slapp dept

Back in January we wrote about infamous internet troll Chuck Johnson's absolutely ridiculous lawsuit against Twitter for kicking him off the service. As we noted at the time, the lawsuit appeared to be nearly a carbon copy of Dennis Prager's silly lawsuit against YouTube. And, if you recall, a court tossed that lawsuit earlier this year. And now it's clear that a court is about to toss Johnson's lawsuit as well on anti-SLAPP grounds.

On Tuesday, the court released a tentative ruling and lays out the many, many reasons why Johnson has no case at all, both under CDA 230 and the First Amendment.

Plaintiff further argues that Defendant is not entitled to the protection of the CDA because Defendant seeks to be treated both as a neutral content provider pursuant to the CDA, but at the same time asks for First Amendment protection for its editorial decision to terminate Plaintiff’s accounts. But this is not the standard for immunity under the CDA. (See 47 U.S.C. §230.) Plaintiff cites to 47 U.S.C. §230(c)(2), which requires a showing of good faith in order to be protected from civil liability by the CDA. Defendant, however, relies on subdivision (c)(1), which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The heading of subdivision (c) is “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” (Italics added.) Plaintiff fails to establish that Defendant is not entitled to protection under the CDA, i.e., Plaintiff fails to show that his claims are not barred by the CDA.

Plaintiff also fails to show that his claims can survive Defendant’s challenge based on Defendant’s First Amendment right. Defendant is a private sector company. Although it does invite the public to use its service, Defendant also limits this invitation by requiring users to agree to and abide by its User Rules, in an exercise of Defendant’s First Amendment right. The rules clearly state that users may not post threatening tweets, and also that Defendant may unilaterally, for any reason, terminate a user’s account. The rules reflect Defendant’s exercise of free speech. (See Hurley, supra, 515 U.S. at p. 574.) Plaintiff fails to show that his claims are not barred by Defendant’s First Amendment right to exercise independent editorial control over the content of its platform. Defendant’s choice to close Plaintiff’s account on the ground that Plaintiff’s tweet was threatening and harassing is an editorial decision regarding how to present content, i.e., an act in furtherance of Defendant’s free speech right. Defendant’s choice not to allow certain speech is a right protected by the First Amendment.

The court also laughs off the attempt by Johnson and his lawyers to get around all this by arguing that a well known Supreme Court case concerning shopping malls (Robins v. Pruneyard Shopping Center) somehow means that social media sites can't remove users. We've seen lots of people make this argument for why websites must post the speech of anyone who wants to use those websites, but no court in the land has ever agreed, and this California court certainly wasn't going to be the first.

Plaintiff’s reliance on Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 is misplaced and fails to defeat Defendant’s CDA and First Amendment protections. In Robins, the California Supreme Court held that the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution. The Court specifically noted that “[b]y no means do we imply that those who wish to disseminate ideas have free rein.” The Court reasoned: “A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations . . . would not markedly dilute defendant's property rights.” (Id. at pp. 910-911.) The case is distinguishable from the instant action, where Plaintiff’s tweet could reasonably be, and in fact was, interpreted as threatening and harassing, unlike activity that “would not markedly dilute defendant’s property rights.” (See Sprankling Decl. at Ex. D.) Moreover, Defendant’s rules were adopted to ensure that Defendant is able to maintain control over its site and to protect the experience and safety of its users.

Somewhat hilariously, Johnson's lawyer in the case, Robert Barnes, took to Twitter after the tentative ruling to not just announce a plan to appeal, but... incredibly... to claim victory.

Apparently, Chuck Johnson hired Baghdad Bob as his lawyer.

The key points that Barnes declares "victory" over both appear to involve a somewhat twisted interpretation of what the court is saying. On the first point, of the court declaring Twitter to be a "public forum," that is true, but specifically in the context of California's anti-SLAPP law. I mean, the ruling says that explicitly:

In the instant case, the parties appear to agree that (1) Twitter is a public forum for purposes of the anti-SLAPP statute...

The fact that it is a public forum for the purposes of California's anti-SLAPP statute has no bearing at all on whether or not Twitter is a "public forum" in the sense of spaces created by the government in which speech regulations are limited under the First Amendment. They both use the words "public forum" but they mean totally different things.

The second point, about Twitter's control over its platform being a "matter of public interest," is also specific to California's anti-SLAPP law, which requires the speech in question to be about a matter of public interest. That doesn't help Johnson's case at all, unless you're twisting this specific point concerning anti-SLAPP laws into believing it refers to the government having an interest in regulating how Twitter runs its website. But that would be a totally nonsense interpretation. Though it appears to be the one that Johnson's lawyer wants to go with. The fact that Twitter agreed to both of the points that Barnes is now celebrating (as is necessary under California's anti-SLAPP law) should show you why neither of these points is even remotely damaging to Twitter. And, no, this is not Barnes using 9th dimensional chess to get Twitter to admit to something that harms it elsewhere. This is just nonsense.

Either way, assuming Twitter holds on and wins the anti-SLAPP, it will mean that Johnson will be on the hook for Twitter's legal fees. One hopes that his lawyer informed him not only of this, but the fact that this would also include the additional fees from an ongoing appeal that he seems unlikely to win.

Filed Under: anti-slapp, california, cda 230, chuck johnson, free speech, intermediary liability, public forum, robert barnes, section 230
Companies: twitter