Wherein We Ask The California Supreme Court To Lessen The Damage The Court Of Appeal Caused To Speech

from the nothing-to-see-here dept

A few weeks ago we posted an update on Montagna v. Nunis. This was a case where a plaintiff subpoenaed Yelp for the identity of a user. The trial court originally denied Yelp's attempt to quash the subpoena – and sanctioned it for trying – on the grounds that platforms had no right to stand in for their users to assert their First Amendment rights. We filed an amicus brief in support of Yelp's appeal of that decision, which fortunately the Court of Appeal reversed, joining another Court of Appeal that earlier in the year had also decided that of course it was ok for platforms to try to quash subpoenas seeking to unmask their users.

Unfortunately, that was only part of what this Court of Appeal decided. Even though it agreed that Yelp could TRY to quash a subpoena, it decided that it couldn't quash this particular one. That's unfortunate for the user, who was just unmasked. But what made it unfortunate for everyone is that this decision was fully published, which means it can be cited as precedent by other plaintiffs who want to unmask users. While having the first part of the decision affirming Yelp's right to quash the subpoena is a good thing, the logic that the Court used in the second part is making it a lot easier for plaintiffs to unmask users – even when they really shouldn't be entitled to.

So Yelp asked the California Supreme Court to partially depublish the ruling – or, in other words, make the bad parts of it stop being precedent that subsequent litigants can cite in their unmasking attempts (there are rules that prevent California lawyers from citing unpublished cases in their arguments, except under extremely limited circumstances). And this week we filed our own brief at the California Supreme Court in support of Yelp's request, arguing that the Court of Appeal's analysis was inconsistent with other California policy and precedent protecting speech, and that without its depublication it will lead to protected speech being chilled.

None of this will change the outcome of the earlier decision - the user will remain unmasked. But hopefully it will limit the effect of that Court of Appeal's decision with respect to the unmasking to the facts of that particular case.

Filed Under: anonymous speech, defamation, discovery, free speech
Companies: yelp

Censorship By Weaponizing Free Speech: Rethinking How The Marketplace Of Ideas Works

from the challenges-of-our-time dept

It should be no surprise that I'm an unabashed supporter of free speech. Usually essays that start that way are then followed with a "but..." and that "but..." undermines everything in that opening sentence. This is not such an essay. However, I am going to talk about some interesting challenges that have been facing our concepts of free speech over the past few years -- often in regards to how free speech and the internet interact. Back in 2015, at our Copia Summit we had a panel that tried to lay out some of these challenges, which acknowledged that our traditional concepts of free speech don't fully work in the internet age.

There are those who argue that internet platforms should never do any moderation at all, and that they should just let all content flow. And while that may be compelling at a first pass, thinking beyond that proves that's unworkable for a very basic reason: spam. Almost everyone (outside of spammers, I guess) would argue that it makes sense to filter out/moderate/delete spam. It serves no useful purpose. It clutters inboxes/comments/forums with off-topic and annoying messages. So, as Dave Willner mentions in that talk back in 2015, once you've admitted that spam can be filtered, you've admitted that some moderation is appropriate for any functioning forum to exist. Then you get to the actual challenges of when and how that moderation should occur. And that's where things get really tricky. Because I think we all agree that when platforms do try to moderate speech... they tend to be really bad at it. And that leads to all sorts of stories that we like to cover of social media companies banning people for dumb reasons. But sometimes it crosses over into the absurd or dangerous -- like YouTube deleting channels that were documenting war crimes, because it's difficult to distinguish war crimes from terrorist propaganda (and, sometimes, they can be one and the same).

An even worse situation, obviously, is when governments take it upon themselves to mandate moderation. Such regimes are almost exclusively used in ways to censor speech that should be protected -- as Germany is now learning with its terrible and ridiculous new social media censorship law.

But it's not that difficult to understand why people have been increasingly clamoring for these kinds of solutions -- either having platforms moderate more aggressively or demanding regulations that require them to do so. And it's because there's a ton of really, really crappy things happening on these platforms. And, as you know, there's always the xkcd free speech point that the concept of free speech is about protecting people from government action, not requiring everyone to suffer through whatever nonsense someone wants to scream.

But, it is becoming clear that we need to think carefully about how we truly encourage free speech. Beyond the spam point above, another argument that has resonated with me over the years is that some platforms have enabled such levels of trolling (or, perhaps to be kinder, "vehement arguing") that they actually lead to less free speech in that they scare off or silence those who also have valuable contributions to add to various discussions. And that, in turn, raises at least some questions about the idea of the "marketplace of ideas" model of understanding free speech. I've long been a supporter of this viewpoint -- that the best way to combat so-called "bad speech" is with "more speech." And, you then believe that the best/smartest/most important ideas rise to the top and stomp out the bad ideas. But what if the good ideas don't even have a chance? What if they're silenced before they even are spoken by the way these things are set up? That, too, would be an unfortunate result for free speech and the "marketplace of ideas".

In the past couple of months, two very interesting pieces have been written on this that are pushing my thinking much further as well. The first is a Yale Law Journal piece by Nabiha Syed entitled Real Talk About Fake News: Towards a Better Theory for Platform Governance. Next week, we'll have Syed on our podcast to talk about this paper, but in it she points out that there are limitations and problems with the idea of the "marketplace of ideas" working the way many of us have assumed it should work. She also notes that other frameworks for thinking about free speech appear to have similar deficiencies when we are in an online world. In particular, the nature of the internet -- in which the scale and speed and ability to amplify a message are so incredibly different than basically at any other time in history -- is that it enables a sort of "weaponizing" of these concepts.

That is, those who wish to abuse the concept of the marketplace of ideas by aggressively pushing misleading or deliberately misguided concepts are able to do so in a manner that short-circuits our concept of the marketplace of ideas -- all while claiming to support it.

The second piece, which is absolutely worth reading and thinking about carefully, is Zeynep Tufekci's Wired piece entitled It's the (Democracy-Poisoning) Golden Age of Free Speech. I was worried -- from the title -- that this might be the standard rant I've been reading about free speech somehow being "dangerous" that has become tragically popular over the past few years. But (and this is not surprising, given Tufekci's previous careful consideration of these issues for years) it's a truly thought provoking piece, in some ways building upon the framework that Syed laid out in her piece, noting how some factions are, in effect, weaponizing the very concept of the "marketplace of ideas" to insist they support it, while undermining the very premise behind it (that "good" speech outweighs the bad).

In particular, she notes that while the previous scarcity was the ability to amplify speech, the current scarcity is attention -- and thus, the ability to flood the zone with bad/wrong/dangerous speech can literally act as a denial of service on the supposedly corrective "good speech." She notes that the way censorship used to work was by stifling the message. Traditional censorship is blocking the ability to get the message out. But modern censorship actually leverages the platforms of free speech to drown out other messages.

The most effective forms of censorship today involve meddling with trust and attention, not muzzling speech itself. As a result, they don’t look much like the old forms of censorship at all. They look like viral or coordinated harassment campaigns, which harness the dynamics of viral outrage to impose an unbearable and disproportionate cost on the act of speaking out. They look like epidemics of disinformation, meant to undercut the credibility of valid information sources. They look like bot-fueled campaigns of trolling and distraction, or piecemeal leaks of hacked materials, meant to swamp the attention of traditional media.

These tactics usually don’t break any laws or set off any First Amendment alarm bells. But they all serve the same purpose that the old forms of censorship did: They are the best available tools to stop ideas from spreading and gaining purchase. They can also make the big platforms a terrible place to interact with other people.

There's a truth to that which needs to be reckoned with. As someone who has regularly talked about the marketplace of ideas and how "more speech" is the best way to respond to "bad speech," Tufekci highlights where those concepts break down:

Many more of the most noble old ideas about free speech simply don’t compute in the age of social media. John Stuart Mill’s notion that a “marketplace of ideas” will elevate the truth is flatly belied by the virality of fake news. And the famous American saying that “the best cure for bad speech is more speech”—a paraphrase of Supreme Court justice Louis Brandeis—loses all its meaning when speech is at once mass but also nonpublic. How do you respond to what you cannot see? How can you cure the effects of “bad” speech with more speech when you have no means to target the same audience that received the original message?

As she notes, this is "not a call for nostalgia." It is quite clear that these platforms also have tremendous and incredibly important benefits. They have given voice to the formerly voiceless. There are, certainly, areas where the marketplace of ideas functions, and the ability to debate and have discourse actually does work. Indeed, I'd argue that it probably happens much more often than people realize. But it's difficult to deny that some have weaponized these concepts in a manner designed to flood the marketplace of ideas and drown out the good ideas, or to strategically use the "more speech" response to actually amplify and reinforce the "bad speech" rather than correct it.

And that's something we need to reckon with.

It's also an area where I don't think there are necessarily easy solutions -- but having this discussion is important. I still think that companies will be bad at moderation. And I still think government mandates will make the problems significantly worse, not better. And I very much worry that solutions may actually do more harm than good in some cases -- especially in dragging down or silencing important, but marginalized, voices. I also think it's dangerous that many people immediately jump to the platforms as the obvious place to put all responsibility here. There needs to be responsibility as well on the parts of the end users -- to be more critical, to have more media literacy.

And, of course, I think that there is a space for technology to potentially help solve some of these issues as well. As I've discussed in the past, greater transparency can help, as would putting more control into the hands of end users, rather than relying on the platforms to make these decisions.

But it is an area that raises some very real -- and very different -- challenges, especially for those of us who find free speech and free expression to be an essential and core value. What do we do when that free speech is being weaponized against free speech itself? How do you respond? Do you need to weaponize in response and flood back the "bad speech" or does that just create an arms race? What other ways are there to deal with this?

This is a discussion that was started a while back, but is increasingly important -- and I expect that we'll be writing a lot more about it in the near future.

Filed Under: attention, censorship, denial of service, free expression, free speech, marketplace of ideas, nabiha syed, zeynep tufekci

Italian Government Criminalizes 'Fake News,' Provides Direct Reporting Line To State Police Force

from the let-a-bold-new-era-of-SWATing-begin! dept

No one knows how to handle "fake news." Rather than step back and see what light-touch approaches might work, governments all over the world are rushing forward with bad ideas that harm speech and threaten journalism. No one seems to be immune to the "do something" infection and everything proposed is just another way to give governments more direct control of social media platforms and news outlets.

In Italy, the government control of speech under the guide of "fake news" deterrence is being done in the worst way possible. It's not being handed to a regulatory body with instructions to sort of keep an eye on things. Instead, as Poynter reports, it's rolling out as a heckler's veto backed by armed officers.

In an effort to address fake news ahead of this year's elections, the Italian government has created an online portal where people can report hoaxes.

The portal, which Interior Minister Marco Minniti announced Thursday, prompts users to supply their email address, a link to the misinformation they're reporting and any social networks they found it on.

Then the requests are ferried to authorities at the Polizia Postale, a unit of the state police that investigates cyber crime, who will fact-check them and — if laws were broken — pursue legal action. In cases where no laws were broken, the service will still draw upon official sources to deny false or misleading information.

It seems as though this could be handled without government interference -- especially not the sort that might result in armed officers showing up at a press agency's HQ, demanding rebuttals, deletions, or arrests of fake news offenders. The government's anti-fake news effort even gives the government a platform for "more speech," which is all speech like this really needs to be greeted with.

Getting facts wrong should be a black eye (not literally!) for journalists, rather than a criminal offense. Fake news spread maliciously should be greeted with little more than fact checking and debunking. This can -- and should -- be handled by journalists and citizens. Giving the government a platform for debunking caters to its innate desire to control the narrative in questionable situations. The government is certainly welcome to present its own side and deliver facts that rebut claims made by others. But it doesn't need legislation to do this and it certainly does not need to bring law enforcement into the mix.

Adding to the host of problems is the fact that "fake news" hasn't been clearly defined by the government. True, the term resists strict definition, but the lack of discernible contours means the government can simply target any speech it doesn't like and force the issue by handing it over to the police force. The opening of an online portal invites further abuse by citizens who prefer shouting down people with opposing views, rather than engaging in constructive discussions.

Whenever the police is given the task of dealing with the truth and falsehood of news and political content, yes, those who care about democracy should be worried — not feel protected,” [journalist Fabio] Chiusi said. “Citizens in healthy democracies don’t need to be protected from falsehood of this sort: they should be able to freely exercise their judgment, with no interference from state authorities — especially the police.”

Arianna Ciccone, founder of the International Journalism Festival, agreed. She told Poynter in an email that the initiative — which Chiusi said doesn’t offer a counter-measure for those who might be falsely accused — opens up the possibility of future infringements of free speech by the government, as well as a potential cooling effect on the press.

In short: If journalists are too afraid that making a mistake will result in legal intervention, what will go uncovered?

Reporters will not only shy away from publishing articles while details are still emerging, but will also be deterred from publishing anything the government might disagree with. The term "fake news" has become shorthand for news anyone disagrees with, whether or not the contents are untrue. This gives the Italian government free rein to harass news outlets it doesn't like. Even if journalists are ultimately cleared of criminal charges, they'll be forced to spend time and money defending themselves and the outlets they work for will likely face future harassment from authorities. Once you're on law enforcement's radar, you're there forever. It's the newsroom equivalent of inner city life, where merely existing in a "high crime" area exposes you to constant, unprovoked "interactions" with law enforcement.

Normally, I'd say something like "the legislation's aim is noble," but in the case of governments v. fake news, that can't even be said. The term eludes strict definition which is the sort of thing you definitely need if you're going to regulate speech. Providing a direct pipeline to police mobilization is perhaps the worst "solution" presented so far. And as the anti-fake news effort picks up steam, the ripple effect will move beyond harassed journalists to every Italian citizen who's "liked" or retweeted social media posts deemed "fake news" by a law enforcement entity.

Filed Under: elections, fake news, free speech, italy, law enforcement

Psychiatrist Bitterly Drops Defamation Lawsuit Against Redditors

from the EVEN-THOUGH-I-AM-100%-IN-THE-RIGHT,-I-AM-WALKING-AWAY-ANGRILY dept

Dr. Douglas Berger, an American psychiatrist offering services to ex-pats in Japan, recently sued a bunch of Redditors for telling other Redditors to steer clear of his services. Berger's lawsuit was exhaustive, covering several months of disparaging comments delivered by Redditors, but much of what Berger considered libel fell under the category of "protected opinion."

Berger's ultimate goal appeared to be a revamp of his Google search results. Sitting ahead of multiple URLs linked to Berger and his Japanese business (many which appear to be owned by Berger himself) were links to multiple Reddit threads with unhelpful (for Berger anyway…) titles like "Stay away from 'psychiatrist' Doug Berger." In these threads, Berger was accused of everything from a lack of attentiveness during sessions to harassment to dodging income taxes.

It wasn't pretty, but Berger's lawsuit was even uglier. Berger wanted a court to unmask multiple anonymous Redditors, while offering up little more than his opinions about opinions. While there were a few marginally-actionable statements listed in the lawsuit, Berger targeted every Redditor who'd ever said anything less than favorable about him.

The Redditors put together a fundraising page for legal fees and secured the help of Marc Randazza. The good news is most of this is now unnecessary.

After realizing what the defendants knew from the beginning - that he had absolutely no standing to sue anonymous internet commenters in Florida - Dr. Douglas Berger, who is not currently licensed to practice medicine in any US state, has withdrawn his lawsuit.

While the group are disappointed that the court system was not given a proper chance to reject Dr. Berger's SLAPP tactics, they are grateful to the Randazza Legal Firm for their counsel and hard work on the case.

The group's final legal bills are not expected to exceed $5000, and the goal of this campaign has been updated to reflect that. Any amount donated above the $5000 goal will be donated to TELL JP.

Berger's dismissal [PDF] -- without prejudice, unfortunately -- is short, but it's anything but sweet. It only runs two paragraphs but each word is coated with the grit of Dr. Berger's tooth enamel.

Pursuant to Florida Rule of Civil Procedure 1.420, Plaintiffs Douglas Berger and Meguro Counseling Center (collectively "Plaintiffs") voluntarily dismisses all claims against Defendant John Doe and Nominal/Relief Defendant Reddit Inc. without prejudice, each party bearing its own costs and fees.

Plaintiffs' dismissal is submitted after preliminary discovery has raised questions about the proper jurisdiction to litigate the acerbic, irrational, and highly defamatory statements which have been published about him on the Internet. This dismissal does not reflect in any way upon the merits of Plaintiffs' undoubtfully legitimate claims under applicable law, his likelihood of success upon the merits, or the compensable damages for which he will seek recovery upon his re-filing.

Whew. That's a read. So, there are questions about jurisdiction, what with Berger living in Japan and the Redditors living… wherever. Tacked to the end is a threat to refile, as if the jurisdictional questions will somehow resolve themselves without Berger finding out where these Redditors reside. It could be Berger is planning to take his complaint to the Japanese judicial system (as noted by a commenter here and apparently stated by Berger himself) where it might be easier to win, but far more difficult to find people to win against. Japanese law treats defamation differently, allowing factual statements that harm someone's reputation to be treated as defamatory.

Good to know the truth is always a defense, right? Well, in Japanese libel and slander cases, the truth won't necessarily help you. Instead, it all comes down to reputation. [...] Even if a published statement is 100% true, it can still be considered defamatory if it irrevocably hurts the subject's reputation and oftentimes the question of truth doesn't really enter the equation. For example, in 2012 a Japanese man discovered that when he put his name into the Google search bar, it autocompleted results that implied he had a criminal record, and this man argued these autocomplete search results were severely damaging his reputation. Some sources strongly implied this man really did have a criminal past, others said that he was innocent. But it didn't really matter either way—the Japanese court ordered Google to remove the autocomplete terms, which they did.

On the other hand, discovery will be a bit more difficult.

Compared to the United States, which employs one of the most extensive discovery systems in the world, Japan’s rules governing the collection of evidence seem woefully inadequate. Modeled after German civil procedure rules, most evidence production in Japan takes place at trial. Authority and control over the gathering of evidentiary facts is vested in the court, with the judge assuming the primary responsibility for taking and receiving evidence. Japanese attorneys have no real power to compel the production of evidence or to elicit testimony from either adverse parties or third parties, and must therefore rely on voluntary cooperation or seek intervention by the court. This is in stark contrast to U.S. discovery, which is conducted mostly by the parties themselves with only minimal court supervision.

If Berger can't unmask Redditors prior to filing, it's going to be more difficult for him to pursue them in Japan. The Japanese system aligns with Berger's take on what is or isn't defamation, but a lack of defendants makes pursuing this overseas a dead end. Reddit has no offices in Japan so the court would have to ignore jurisdictional limits to compel production of identifying info, possibly leaving him without a defendant to sue.

For the moment, the case is dormant. Randazza will likely jump back in if needed, but Berger may be realizing suing users of an influential social sharing site has only made more unflattering links appear in his vanity searches.

Filed Under: anonymity, criticism, defamation, douglas berger, free speech, japan, reviews, slapp
Companies: reddit

Brazilian Government Mobilizes Federal Police To Handle 'Fake News' Problem

from the as-the-US-president-admires-from-afar... dept

Hot-button topic "fake news" is going to be the downfall of the internet. All over the world, governments are trying to tackle the non-issue by introducing harmful legislation that will only result in increased direct control of the press by the governments passing these bills. "Fake news" defies definition. It could be read to encompass satire and parody. It could also cover legitimate news that deals with subject matter certain people don't like. That's pretty much how it's been defined by the party in power here: whatever Donald Trump doesn't like is deemed "fake news" by the Commander in Chief, even if the news is based on factual events and credible statements.

Allowing the government to get in the speech business is a bad idea. All "solutions" proposed by world government officials are vehicles for abuse by the state -- a way to suppress anything that doesn't align with the party in power's narrative. On a smaller scale, it also creates a handy heckler's veto for social media platforms, putting brigades a click away from shouting down stuff they don't like.

In Brazil, fake news is under attack… and in the worst way possible. Governments nudging media platforms and press agencies towards self-censorship is one thing. Handing this over to men with guns is another.

Yesterday afternoon, official Twitter account of Brazil’s Federal Police (its FBI equivalent) posted an extraordinary announcement. The bureaucratically nonchalant tone it used belied its significance. The tweet, at its core, purports to vest in the federal police and the federal government that oversees it the power to regulate, control, and outright censor political content on the internet that is assessed to be “false,” and to “punish” those who disseminate it. The new power would cover both social media posts and entire websites devoted to politics.

“In the next few days, the Federal Police will begin activities in Brasília [the nation’s capital] by a specially formed group to combat false news during the [upcoming 2018 presidential] election process,” the official police tweet stated. It added: “The measures are intended to identify and punish the authors of ‘fake news’ for or against candidates.” Top police officials told media outlets that their working group would include representatives of the judiciary’s election branch and leading prosecutors, though one of the key judicial figures involved is the highly controversial right-wing Supreme Court judge, Gilmar Mendes, who has long blurred judicial authority with his political activism.

Considering the breadth and depth of the government's corruption, this initiative has the chance to deliver instant death sentences to journalists, bloggers, and social media shitposters all over the nation. This isn't hyperbole. Violators will be arrested. And any arrest can result in dead suspects, especially when the Brazil Federal Police's itchy trigger fingers are propelled by a sense of "duty" that has promised to ignore a lack of legal authority to engage in purging of publications the government doesn't like.

Tellingly, these police officials vow that they will proceed to implement the censorship program even if no new law is enacted. They insist that no new laws are necessary by pointing to a pre-internet censorship law enacted in 1983 — during the time Brazil was ruled by a brutal military dictatorship that severely limited free expression and routinely imprisoned dissidents.

A top police official just yesterday warned that, absent a new law, they will invoke the authorities of one of the dictatorship era’s most repressive laws: the so-called Law of National Security, which contain deliberately vague passages making it a felony to “spread rumors that caused panic.”

This police official also took time to complain the penalties for violating the old law the cops will use if the new law doesn't pass were too lenient and didn't provide for enough punishment for citizens uttering unpopular opinions or statements. The law cited by the Federal Police was -- and is -- a dictator's best friend, allowing the government to control narratives and stifle dissent while claiming every bit of abuse is justified due to omnipresent national security concerns.

Nations that might be concerned with a corrupt government's crackdown on "fake news" are in no place to complain. Many governments that consider themselves far more tolerant of speech have introduced or passed laws targeting fake news in recent months, leveling the high ground they might have used to denounce the deployment of the federal police force to punish speech the Brazilian government doesn't like. France, Germany, etc. are Brazil's bedfellows. The lack of jackbooted thugs kicking down bloggers' doors doesn't do much to brighten the "free world's" tarnished halo.

Filed Under: brazil, fake news, free speech, police

Iowa State's Attempt To Violate Its Students First Amendment Rights To Cost State Nearly $400k In Damages

from the money-well-spent dept

In the early part of 2017, we brought you the story of an Iowa State University student group pushing for marijuana reform in the state that was being targeted by the university for trademark infringement after the group used some school iconography on t-shirts it developed for its cause. The whole episode was fairly bonkers, with the school initially approving the students' use of the imagery, only to rescind that approval after Iowa House Republicans sent a letter to the school's leadership questioning the decision. That sort of infringement of speech by a school and, in the background, by state legislators that really should have known better, was always destined to result in legal proceedings, given the enormous First Amendment implications. Well, as we reported, that trial ran its course, including an appeal, and was decided in the favor of the student group.

While all of that was settled last year, what we didn't know until recently is just how much taxpayer money would be paid out as a result of a public university and state legislators seeking, quite plainly, to infringe on perhaps the most sacred right this country enjoys. Now we have an answer to that question: at least $350,000.

The State Appeal Board voted to pay $150,000 in damages to two leaders of the university chapter of the National Organization for the Reform of Marijuana Laws whose free-speech rights were violated by campus administrators. The board also approved a $193,000 payment to two law firms that represented the group for their efforts to defend against the university's unsuccessful appeals, and additional legal fees for their trial work in an amount to be decided by a judge.

The costs stem from what federal judges found were the university's politically motivated, illegal attempts to ban T-shirt designs that featured the Iowa State mascot and a small cannabis leaf — and its yearslong, unsuccessful defense of those efforts in court. The payouts will come from the state's general budget.

I will be severely disappointed in the state of Iowa if every House member that signed that letter to the school doesn't have campaign ads running against them highlighting the fact that this plainly unconstitutional action cost state taxpayers at least well over a quarter of a million dollars. Especially when you consider that the legal team for the student group practically begged the school to settle early on to avoid exactly these kinds of costs.

And that $350k figure is almost certainly just a starting point and not what the ultimate payout from the state will be.

"It is an unambiguous win for our clients and for the First Amendment and for an understanding that violating people's rights isn't free," said the plaintiffs' lead attorney, Robert Corn-Revere. "One reason we urge universities to settle early is to avoid these kinds of expenses."

He said he expects to request a fee award that is "substantially more" for trial work than the $193,000 awarded for the appeals, based on the amount of time spent. The deal requires the state to increase the amount awarded by $15,000 to compensate lawyers for their time spent on the fee application. The costs do not include work by the taxpayer-funded Iowa Attorney General's office, which represented former ISU President Steven Leath and three other administrators who were found responsible for the constitutional violations.

All of this because a school decided not to tell a bunch of meddling lawmakers to piss off and instead bowed to their unconstitutional requests. That this reliance on taxpayer money to resolve this mistake is on everyone's record will hopefully go some way to changes in job status for many of these people.

Filed Under: free speech, iowa, marijuana reform, t-shirts, taxpayer money
Companies: iowa state

Bigoted Landlord Files Criminal Complaint Against Critic Who Called Him Bigoted

from the if-you-criminalize-opinions,-only-criminals-will-have-opinions dept

In yet another example of how the UK's government's stated respect for free speech is continually undercut by its actions, a bigoted landlord is bringing charges against a YouTuber for calling him bigoted. (via Innocent Abroad)

Fergus Wilson said he will ‘bankrupt’ Danny Hyde over a video criticising his policy to ban non-white tenants ‘because of the curry smell they leave behind’.

Hyde was referring to statements Wilson made last year, which were part of a bigger leak of inside info that exposed Wilson's extremely questionable tenant standards.

In addition to banning "coloureds" (Wilson's actual words), Wilson also refused to rent housing to single mothers, "zero-hour workers," and battered wives. Quite the humanitarian. So there's no shortage of criticism waiting for Wilson, who actually had to be told refusing to rent to people with darker skin tones was *gasp* illegal.

Multi-millionaire Fergus Wilson, 69, tried to ban non-white tenants because of the ‘cost of removing the smell of curry at the end of their tenancy’. Today a county court ruled the policy was unlawful.

Hyde's video is full of stuff Wilson doesn't want to hear, but that shouldn't make it illegal. Hyde suggests banning curry rather than entire races and describes Wilson as a "penis" and a "bum splat." Here in the United States, those statements would be protected hyperbolic statements of opinion. In the UK, however, they're arguably illegal. This is the video Wilson hopes to shut down with his abuse of a badly-written law. (NSFW: language)

Wilson has filed a complaint stating Hyde's video violates the Malicious Communications Act of 1988. This UK law criminalizes communications "sent" with the purpose of "causing distress or anxiety." The scope of the law is incredibly broad. Ironically enough, the purpose of the legislation was to curb "racially or religiously motivated comments." You know, like saying you're banning "coloureds" for making apartments "smell like curry."

Instead of being wielded against Wilson and his bigoted statements, it's being used to silence a critic of Wilson's bigoted statements. And Wilson has threatened to sue Hyde into bankruptcy if the law fails to result in a $10,000 fine and the forcible removal of the video.

This is the problem with laws targeting speech. Supporters of this type of legislation claim this will make public discourse better and friendlier. Who wouldn't want to see online harassment and bullying brought to a halt? But it never works out that way. The bullying and harassment continues. The only thing that changes is who's handing it out.

Groups frequently targeted by hateful speech never benefit from these laws. Powerful people like Wilson are the ones most likely to use bad speech laws to punish the little guy who just won't shut up. And if it's not powerful people doing the bullying, it's the government itself, handing out fines and removing content it doesn't like while claiming to be offended on behalf of others.

Bad laws encourage legal thuggery. There's no ignoring that fact. Speech laws are often bad laws because they're written with an eye on the hypothetical situation where do-gooding government types clean up the internet by punishing hateful, bigoted people. But when actually put to use, it's hateful, bigoted, powerful people shutting people down for calling them hateful and bigoted.

Filed Under: danny hyde, defamation, fergus wilson, free speech, uk

Philippines Trying To Shut Down Popular News Site For Reporting On President Duterte

from the freedom-of-the-press? dept

The Philippines has a "free speech" amendment in their Constitution not unlike the American First Amendment. In the Philippines, it's actually their 4th amendment:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

From Filipinos I've spoken to, they seem rightfully proud of this right to free speech. And they should be. But these things only matter if they're actually respected. And there's growing evidence that, under President Duterte, there's little respect for such things. A few days ago, the news broke that the Philippines Securities and Exchange Commission was pulling the license of Rappler, a popular Filipino news source started by Maria Ressa. I was privileged to hear Ressa speak at a conference last summer (she was originally supposed to be a participant in a session that I was organizing, but it was much better having her speak separately about the challenges she was facing in covering news in the Philippines). Rappler has really done some amazing work under fairly challenging circumstances.

And... it appears that those challenging circumstances are leading the government in the Philippines to try to shut them down. The official reason for pulling the license is the claim from the SEC that Rappler has violated rules concerning foreign ownership.

The En Banc finds Rappler, Inc. and Rappler Holdings Corporation, a Mass Media Entity and its alter ego, liable for violating the constitutional and statutory Foreign Equity Restriction in Mass Media, enforceable through laws and rules within the mandate of the commission

That, alone, should raise some questions about (1) why they need a license to operate and (2) why it matters how much is owned by foreigners. But the larger issue is that it's not at all clear that the supposed foreign ownership claim is accurate. It does appear that Rappler engaged in a fairly cumbersome financial transaction to allow foreign entities -- including the Omidyar Network -- to help fund its reporting. And some of that involved "Philippine Depository Receipts" or PDRs whose value is tied to the value of Rappler equity -- but which do not grant any actual ownership stake in the company. To the SEC in the Philippines, this appears to be a meaningless distinction, but it actually makes plenty of sense. You can sell an asset class that is tied to the value of something else without it granting equity in the original thing.

What this really comes down to is that Philippine President Rodrigo Duterte is not at all happy with Rappler's coverage of his administration -- and has a history of directly calling out Rappler, and falsely claiming that it's "fully owned by Americans." Earlier this week, while denying having anything to do with the SEC pulling Rappler's license, he also made it clear that he has no problem attacking the site:

Earlier this week, Mr Duterte had addressed a Rappler reporter, saying "you have been throwing trash... If you are trying to throw garbage at us, then the least that we can do is explain how about you? Are you also clean?"

And, as if to make the point even stronger that the Philippines is moving away from its Constitutional support of free speech, some legislators in the Philippines are trying to amend the Constitution to massively weaken the free speech protections in the country, such that they only apply to the laughably vague "responsible exercise" of free speech:

"In the Bill of Rights, we see everything there to be acceptable, except Article 3, Section 4 (freedom of speech)," Capiz Rep. Fredenil Castro (2nd district) said Tuesday during the House Committee on Constitutional Amendments' hearing on the proposed amendments to the Constitution.

A subcommittee proposed to reword the provision to read, "No law shall be passed abridging the 'responsible exercise' of freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."

Castro said many believe the constitutional guarantee of free speech has been "unrestrained."

"There is so much abuse of this freedom," he added.

That's... quite a statement. First of all, if your freedom of expression protections are limited to the "reasonable exercise" of free speech you have no free speech protections, because the government can and will always define speech it dislikes as unreasonable (see Duterte's comments above). Second, the whole point of protecting freedom of expression is that it's "unrestrained." To complain about that seems preposterous. Similarly what Castro sees as "abuse of this freedom" actually means "exercising of this freedom in a way I dislike." And that's the point of having true support for freedom of expression -- that many times it will be disliked by the representatives of the government, but they should be unable to block it.

Unfortunately, it appears some in power in the Philippines see it entirely differently. And, thus it appears that what the Philippines has touted as freedom of expression may be anything but that. Thankfully, not everyone in the government agrees. As reported in Rappler (naturally), some find this problematic:

The House opposition bloc did not agree with this proposal.

"How can you define responsible? What is responsible for them? So when you say responsible, it's what favors them?" said Magdalo Representative Gary Alejano, citing the proliferation of disinformation and propaganda from online personalities who are apparent supporters of President Rodrigo Duterte.

[....]

Ifugao Representative Teddy Baguilat said this provision could be used to curtail freedom of expression.

"That's why, what happened to Rappler, that's because they feel it's not a 'responsible' media institution. And I'm sure other media institutions are threatened right now. So that's the thing, who defines?" he said.

Hopefully cooler heads prevail. Supporting freedom of expression means going all in -- and the Philippines seems to be perilously close to completely ditching the concept.

Filed Under: constitution, foreign ownership, free speech, maria ressa, philippines, rodrigo duterte
Companies: rappler

Psychiatrist Drops His Lawsuit Against Critic Who Left Wordless One-Star Review

from the but-the-damage-is-already-done dept

It looks like the psychiatrist who sued a pseudonymous reviewer over a wordless one-star review has finally decided to stop digging this particular hole. Since news broke of psychiatrist Mark Beale's defamation suit against "Richard Hill," Beale has amassed a great many one-star reviews by non-patients. There's no telling if Beale will be seeking to file an en masse lawsuit against these Does (taking a page out of copyright trolls' handbooks), but this cannot possibly be what he envisioned when he decided the original one-star review was worth suing over.

Unbelievably, Beale managed to convince a judge to allow him to seek the real identity of "Richard Hill" in order to continue with his lawsuit. Not only did the judge give enough credence to Beale's argument that a one-star review was per se defamatory, but the judge granted the unmasking order, calling a review of business "commercial speech" -- something given less protection under the First Amendment.

University of South Carolina professor Eric Robinson has been keeping an eye and the local docket and sends us news that Beale has dismissed the case. It's a voluntary move [PDF] on Beale's part, but it's also without prejudice, leaving the path clear for Beale to refile.

But it doesn't look like Beale will amend this suit or refile, even if he's found a judge willing to bypass First Amendment protections to unmask a critic who left nothing more than a wordless single-star review. At least not against a Doe defendant. The unmasking did happen and Beale's request [PDF] to view the information turned over under seal to his lawyer was granted [PDF] by the judge. Soon after that, the request for dismissal [PDF] was filed.

This means Beale now knows who "Richard Hill" actually is. He could have stuck with the lawsuit, amending it to include the Doe's real name and serving the defendant. But he sought dismissal instead. Does that mean Beale found "Richard Hill" was actually someone he didn't want to take to court, or worse yet, someone he already knew? Remember, his original lawsuit contained some very curious assertions to bolster his allegations, the weirdest being that his mother thought "someone she knew" was trying to ruin his reputation.

Or it could be Beale discovered Hill was an actual patient of his, despite his assertions otherwise. (His lawsuit claimed two things: "Richard Hill" was a fake name and "Richard Hill" was not a patient of his. These two statements are tough to make definitively, but Beale asserted both simultaneously in his lawsuit.) Maybe he didn't feel like pursuing an unhappy patient in court, especially after he had already sworn otherwise in his complaint. Or maybe Beale is planning some sort of offline, out-of-court battle against the unmasked critic -- something that would be unfortunate but at least wouldn't allow this particular judge to continue his attack on the First Amendment.

That makes this cut-and-run a bit more interesting than it would normally be, as litigation has ceased after discovery of the only thing Beale appeared to be missing from his suit: a defendant he could serve. Equally problematic is there's a judge in the South Carolina court system where locals can take their grievances about anonymous commenters and expect unmasking to proceed, no matter how weak their arguments are.

Whatever the future holds for Beale and his litigious moves is unknown, but there's no undoing the damage Beale did to his own reputation by trying to make a case out of a one-star review. Had he done nothing, it would have been carried away by internet flotsam with zero damage to his career or future prospects. Instead, Beale could not let a one-star, wordless review go unanswered, and now his Google results are full of them.

Filed Under: anonymous speech, criticism, defamation, first amendment, mark beale, one star review, reviews