Would-Be Congressman Wants A Law Forcing Social Media Platforms To Keep All His Alt-Right Buddies Online

from the GOVERNMENT-CONTROL-IS-FREEDOM dept

Wisconsin businessman Paul Nehlen is running for the other Paul's (Ryan) House seat in next year's midterm elections, and we can only hope this man is never allowed to operate law-making apparati at a federal level. He has big ideas for the nation -- most of them sounding exactly like President Trump's big ideas: A wall! Paid for by Mexico! Killing off Obamacare! Making abortions illegal! Bulk, untargeted deregulation!

Nehlen also has big ideas about the First Amendment. Big ideas and a toddler-like grasp on tricky terms like "censorship." Nehlen hates (HATES!) government regulation but feels the government should step in and, under the color of law, prevent internet companies from monitoring their platforms as they see fit.

The highly-problematic Nehlen wants Twitter, Facebook, YouTube, etc. to stop kicking like-minded people off their platforms. It's undeniable Twitter has been deleting accounts held by far-right persons more often than those veering widely to the left. Some feel Facebook and Google have been doing the same thing, but the complaints of unfair moderation are loudest on Twitter. Nehlen is one of those complaining. But if he gets elected to Congress, he'll be able to do actual damage.

This is Nehlen's grand idea for turning Twitter etc. into alt-right-friendly platforms: heavy-handed regulation. He introduces it by borrowing words from none other than net neutrality-killer Ajit Pai. Why? Because Ajit Pai's anti-regulatory efforts are somehow aligned with Nehlen's plan for regulation of internet services. The following is from his press release [delivered via tweeted images rather than a PDF, because wtf. {makeshift PDF version}]:

"We need a federal law prohibiting censorship of lawful speech on major social media platforms," Nehlen asserts. "It is well-known that Twitter, Facebook, and YouTube discriminate against the right-wing, as evidenced by FCC Chairman Ajit Pai's recent comments. While widely heralded for those comments, they rang hollow with no suggested solution. This law is that solution. It will extend Americans' First Amendment free speech protections onto social media platforms."

The Nehlen goes on to create his own definition of censorship, just so he can try to get the government into the business of running social media companies.

"This law will not interfere with the features or functionality, so market forces will remain in play. The problem is their censorship of lawful speech. Hypocritically, the same companies that support net neutrality also want to censor your speech."

Moderation isn't censorship, but whatever. Also: it's a bit rich to call companies hypocritical when you're the one running on a platform that includes heavy deregulation. Much like those "free speech, but" people on the left who think the US should criminalize "hate speech," some people on the alt-right think the government should take a hands-off approach to private corporations but somehow still feel the government should get involved when platform moderation efforts target them and their colleagues.

It takes a new definition of censorship to get the government involved in the, um, "extending" of free speech rights. Nehlen's law would fine companies $500,000 "per instance of wrongful censorship" -- putting the government in the position of "equalizing" free speech by making moderation decisions for private companies.

The new definition of censorship would include suspensions, bans, shadowbans, throttling, memory-holing, trending topic manipulation, demonetization… basically any effort platforms undertake to moderate users and their postings. Notably, only four platforms would be affected by this legislation: Facebook, Twitter, YouTube, and Reddit. Every other platform is free to do all of these things without fear of repercussion. Nothing makes a bad law "better" than inconsistency of both the internal and external varieties. This legislation doesn't even attempt to align itself with the Constitution, much less any logical reading of the term "censorship."

And guess which agency would be handling this internet regulation? That's right: the FCC -- the same entity whose boss just said he's profoundly opposed to regulating internet service providers.

The whole shitty idea closes with Paul Nehlen, possible white nationalist and Roy Moore supporter, bashing his party for failing to introduce suicidal legislation that would do terrible things to both social media platforms and free speech.

"The GOP's voters are being systematically censored off the primary channels of public communication by left-wing tech giants, and [Paul] Ryan -- indeed, the entire GOP Congress -- has sat utterly mute for years and allowed it to happen."

This is the point where I would generally say something flippant like "this guy's actually suggested a border wall with remote-control machine guns to stop immigration so there's no chance in hell he's getting elected" but I said a lot of flippant things about our current president while he was still on the campaign trail and… well, there's an electoral college map out there that shows exactly how these things that will never happen sometimes happen. There's an audience out there eating up this rhetoric -- one that finds zero inconsistency in arguing for wholesale deregulation while demanding the government step in and smack around companies for doing things they don't like.

Let's make something perfectly clear: terrible, inconsistent moderation efforts are not censorship. They feel like censorship to those hit by them, but it's a wholly subjective view that's not backed by any statutory definition or the Constitution itself. You add the government to the mix -- like Nehlen proposes -- and you have actual censorship, in a form that prevents companies that provide platforms for speech from handling their own moderation efforts without government interference. This will do harm to First Amendment-protected speech, not "extend" free speech protections to the internet, as Nehlen claims it will. You tell any platform the government is going to hit it with half-million-per-violation fines for "censorship," and you can bet they'll find any reason at all to prevent new accounts from signing up, and rewrite their policies so end users bear all costs of this government intervention. Telling people speech will be "freer" when it's controlled by men with guns is not just stupid, it's dangerous.

Filed Under: alt-right, free speech, mandatory speech, moderation, paul nehlen, section 230, social media
Companies: facebook, twitter, youtube

Iowa Supreme Court Apparently Unfamiliar With First Amendment And Prior Restraint: Bars Newspaper From Publishing Info

from the that-won't-fly dept

You would think that to become a state Supreme Court Justice you need to be familiar with the basics of the law -- including famous legal rulings. For example, New York Times Company v. United States from 1971 is a pretty important and well known First Amendment case, in which the court specifically said that preventing newspapers from publishing information was unconstitutional prior restraint. That case relies on a number of other super famous First Amendment cases such as Near v. Minnesota and Bantam Books v. Sullivan. I mean, I'm not a lawyer and I know these cases. You would think that an Iowa Supreme Court Justice would as well.

No such luck, apparently. As the Associated Press is reporting, Justice David Wiggins of the Iowa Supreme Court has blocked the Des Moines Register from publishing material that it had obtained via court records that were inadvertently made public.

Wiggins granted a temporary stay Monday that blocked the newspaper from publishing information obtained from records relating to Des Moines attorney Jaysen McCleary. McCleary argued the records contained private information about his disabilities and finances and were never intended to be public.

The records were inadvertently filed publicly by one of McCleary's lawyers in a lawsuit he filed against the city of Des Moines that alleged he suffered injuries when he was hit in the head by a garbage container launched from a city truck. They consisted of reports from experts who had evaluated McCleary, and were available for months in the state's electronic court records. The parties told the court they reached a settlement in November.

Now, it's entirely reasonable to sympathize with Mr. McCleary. Through no fault of his own, material that he doesn't want public got released. He should be pretty pissed off at his lawyers. But that is no excuse for prior restraint. There is no First Amendment exception for "but that might embarrass the guy" or "oops, he didn't mean that to become public."

The Des Moines Register has made it clear it intends to fight this order:

The Register has objected, calling the order an unlawful form of prior restraint that violates the First Amendment and “stands as an undesirable and unsustainable outlier in the law and policy of this state and this nation.”

[....]

The Register’s attorney, Michael Giudicessi, has asked the Iowa Supreme Court to vacate the order, arguing in court filings that “the United States Supreme Court has never approved imposition of a prior restraint against the news media and the court has suggested it would consider doing so only in dire situations, such as matters of national security when the country is at war.”

Giudicessi wrote that the order is “an impermissible prior restraint of the press barred by the Iowa and federal constitutions. … The order unmistakably functions as an injunction directed to the Des Moines Register newspaper and its news reporter, Clark Kauffman, enjoining them from publishing the contents of court records.”

Apparently, the documents in question were not just filed publicly by McCleary's lawyers, but they remained available for anyone to download for an astounding three months, without objections. It was only after McClearly realized that the Des Moines Register was going to publish something that his lawyers suddenly freaked out.

Even more incredible, according to the Des Moines Register's Clark Kauffman, writing a story in which he refers to himself in the third person, he first alerted McCleary to the documents being public, and received a thank you from McCleary... followed up by a lawsuit.

On Nov. 15, after reviewing hundreds of court documents, Kauffman emailed McCleary to let him know the records were publicly available on Iowa Courts Online.

"I just wanted to make you aware of that in case that was something you or your attorneys had asked the court (to) address,” Kauffman wrote.

McCleary wrote back, thanking Kauffman for alerting him to the situation. The next day, a Polk County judge had the documents sealed and made subject to a protective order.

McCleary later sued Kauffman and the Register, claiming they were conspiring with the city of Des Moines to defame him and damage his reputation through a planned news article that would make use of the sealed records and other information.

What a way to "thank" Kauffman for alerting him to the fact that the information was public. Suing Kauffman seems like a pure SLAPP lawsuit. Too bad Iowa doesn't have an anti-SLAPP statute.

It's difficult to see how this injunction against publishing will hold, and it's difficult to see how McCleary can win his cases against Kauffman, but without an anti-SLAPP law to get the case tossed quickly, it can still be quite a painful process. In the meantime, if McCleary didn't want to "damage his reputation," perhaps he shouldn't have sued a local newspaper and its reporter for doing their job. Because no matter what's in the now blocked report, I can't imagine it doing as much harm to one's reputation as trying to use the legal system to silence the press from reporting on public information.

Filed Under: clark kauffman, david wiggins, free speech, iowa, jaysen mccleary, prior restraint
Companies: des moines register

DOJ Wants Protesters & Reporter Convicted For 'Hiding Behind The First Amendment'

from the protect-and-defend-the-constitution dept

Employees of the federal government swear an oath to protect and defend the Constitution. Assistant US Attorney Rizwan Qureshi must have done that as well. And, among the parts of the Constitution he's supposed to defend is the First Amendment. But, as a lawyer for the DOJ he has a job to do -- and apparently sometimes that job includes making batshit insane arguments to try to throw protesters and a reporter in jail against their basic First Amendment rights to assemble and to report. This is the case against six people who were singled out and prosecuted, among hundreds of people arrested during protests around Donald Trump's inauguration. We wrote about it last month, mainly focusing on one defendant Alexi Wood, a journalist who was filming/live-streaming the protests, but still got arrested and prosecuted.

Pretty much everyone should agree that protesting is legal and protected under the First Amendment. Obviously, vandalism and property destruction are not. But, the incredible thing about this case and the arguments that Qureshi made is that he didn't even bother to claim that the six defendants participated in violence or property destruction. He just argued a form of aiding and abetting the violence and damage, just by being present, and complained that they were "hiding" behind the First Amendment. Here's a snippet from the Washington Examiner's report on the closing arguments:

A federal prosecutor said Thursday that jurors must convict six people arrested during President Trump’s inauguration because they “agreed to destroy your city and now they are hiding behind the First Amendment.”

[....]

During closing arguments Thursday, Assistant U.S. Attorney Rizwan Qureshi offered no evidence that the six committed acts of violence or vandalism, or attended planning meetings for an anti-capitalism march that ended in the arrest of about 240 people in downtown Washington.

Instead, Qureshi likened the defendants to robbery get-away drivers, guilty because they helped anonymize others in a crowd.

“That’s exactly what this sea of black was, it was the getaway car,” he said.

Think about that for a second. He's claiming they are GUILTY BECAUSE THEY HELPED ANONYMIZE OTHERS IN A CROWD.. This is pure insanity on multiple levels. First, anonymity is, by itself, protected by the First Amendment. Second, your own First Amendment rights don't get thrown out just because prosecutors can't find the actual perpetrators of violence in a crowd and decide to nab you instead. That's not how it works.

The specific argument against some of the defendants was equally crazy. Two of the defendants say that they were acting as medics for the protesters. Indeed one of them, Brittne Lawson, rather than fading into the anonymous crowd in black, was wearing a white helmet with a red cross. But check out how Qureshi spun someone being there to help people who might get injured:

“Ms. Lawson was prepared for war and she was going to make it succeed,” Qureshi said, saying she planned “to mend them and get them up on their way.”

“What do you need a medic with gauze for? I thought this was a protest,” he said. “There’s nothing wrong with being a medic, but she was aware there was a riot going on.”

WHAT?!? Being aware that a protest might turn violent, and being interested in helping anyone who might get injured in no way makes you guilty of any of the violence. And claiming that she "was prepared for war and she was going to make it succeed"? What the hell? Does Qureshi think that Doctors Without Borders is equally responsible for war crimes for mending those injured during wars?

As for Wood, the journalist who was livestreaming, Quereshi went after him for saying "whoohoo" during the livestream:

Prosecutors condensed Wood’s footage to show his utterances of “woohoo” during acts of vandalism and when police fired flash-bang grenades at protesters. “That’s not journalism,” Qureshi said. “He’s egging them on. ... I know a lot of journalists who would take issue with his coverage.”

It's true that many journalists would take issue with that kind of coverage, but one of the great things about the whole First Amendment is that doesn't fucking matter. Just because other journalists approve or disapprove of someone's style or coverage or opinions doesn't shed them of their First Amendment rights. Thankfully, Wood's lawyer pointed out that the government doesn't get to decide what's good journalism vs. bad journalism. That's the very crux of the First Amendment.

And, again, it gets worse. Qureshi claims that because he, himself, was ignorant of a common term of how police round up protesters, while Wood was aware of it, it somehow proves he's not a journalist. I only wish I was kidding.

Qureshi questioned why he would know certain terms, such as “kettling,” which refers to a police tactic of surrounding activists. The term kettling often is used by protest-rights advocates who view it as an illegal strategy.

“How’s he a journalist and he’s talking about a ‘kettle’? I didn’t know what a kettle was before this case, did you?” Qureshi said.

Qureshi apparently said the same thing about the fact that Wood knew the term "black bloc." This is a really cynical ploy, basically trying to tell the jury that because a journalist is actually knowledgeable about protests and police, it somehow no longer makes him a journalist. Shouldn't this actually be more evidence that he's a journalist? That he actually researched information on the protests and protesters and knew common slang and situations?

There were many more crazy things said -- you can read many more quotes at the Unicorn Riot Twitter feed -- but this seems like a really, really weak case, with a really, really crazy prosecution position by the DOJ.

But, take a step back and think about what Qureshi's arguments would mean if accepted. It would mean that merely being outside near a protest would put you at risk of serious criminal liability -- just because you might incidentally help make others anonymous or hidden. That is not and cannot be the law. And you know who knows that? Assistant US Attorney Rizwan Qureshi. In an interview he gave two years ago, he talked about the importance of being "engaged in your community, no matter where it is" in order to do things like "eradicate hate" and "fight hate." And yet, here he is, just a couple years later, trying to throw people in jail for publicly engaging with their community to try to fight hate.

Filed Under: alexi wood, brittne lawson, doj, donald trump, first amendment, free speech, inauguration, journalism, protests, rizwan qureshi

Australian Government Wants To Punish Whistleblowers And Journalists Who Leak Classified Documents With Up To 20 Years In Prison

from the maybe-they-haven't-heard-about-this-internet-thing dept

Whistleblowing stories have become something of a commonplace, as a stream of Techdirt posts attests. Some leaks offer massive revelations, like the documents released by Chelsea Manning, or Edward Snowden. Others are smaller scale, but expose unsuspected activities that powerful people were trying to keep in the shadows. Here, for example, is a recent leak published in the Guardian about big companies spying on law-abiding organizations that dare to disagree with them:

They shine a rare light on a habitually secretive industry in which large firms hire covert operatives to monitor and infiltrate political groups that object to their commercial activities. At a premium is advance information, tipping off the firms about protests that are being organised against them.

As the Snowden files proved, leaks about government activities can have particularly important knock-on consequences in terms of improving the balance of power between citizens and their supposed representatives. Perhaps because of that effect, the Australian government plans to bring in new laws that could see whistleblowers jailed for 20 years:

Australian government and intelligence whistleblowers -- and potentially even journalists -- may face up to 20 years in jail for disclosing classified information, under the most sweeping changes to the country's secrecy laws since they were introduced.

BuzzFeed reports the legislation will be extremely broad:

The new laws will apply to anyone, not just government officials. They could easily apply to journalists and organisations like WikiLeaks that "communicate" or "deal" with information, instead of just government officials. They will also close a longstanding gap around contractors working on behalf of government agencies, who will also be subject to the new offences.

The good news is:

Journalists will have a defence available to them if publication of information is considered to be in the public interest and is "in the person’s capacity as a journalist engaged in fair and accurate reporting".

But the bad news is the onus will be on journalists to show that they satisfy those conditions -- likely to be expensive and maybe even impossible. Despite that issue, it seems doubtful that the new law will have much impact on leaking. After all, most whistleblowers know and accept that they are taking a risk when they release sensitive material, but have already decided it is worth it. Manning and Snowden were not deterred by the threat of extremely serious penalties, and there will always be people brave enough to follow in their footsteps, whatever the consequences.

As far as news organizations are concerned, while it is true that Australian titles may think twice before publishing leaked government documents, there are plenty of other outlets around the world that won't. Even if other newspapers are reluctant to risk the wrath of the Australian government -- perhaps because they have offices and journalists in the country that would be vulnerable to retaliation -- it is easy to set up a dedicated site for the leaks, and then use social media to spread the word. That's essentially what WikiLeaks does, which is unlikely to take any notice of the new law either.

If the Australian government -- or indeed any government -- wants to reduce leaks it should place as much information as possible in the public domain, and seek to protect only the extremely sensitive stuff. Trying to enforce excessive and unnecessary secrecy with manifestly vindictive punishments simply undermines people's respect for the whole system, and probably provokes even more whistleblowers to leak.

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

Filed Under: australia, classified documents, crime, free speech, journalism, whistleblowers

Appeals Court Can't Decide Whether It Should Protect Critic's Anonymity, Boots Free Speech Case Back To Lower Court

from the results-are-inconclusive dept

A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It's a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics.

Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT's books on his "Amthrax" blog. SMT filed a DMCA takedown notice with the blog's hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book.

This quick concession didn't stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked.

SMT moved to compel disclosure of Doe's identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity.

Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe's information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed.

The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]:

With the explosion of anonymous Internet speech, courts have begun to develop balancing tests weighing the First Amendment right to anonymous speech against a plaintiff’s interest in unmasking an anonymous defendant. See id. at 1175–76 (compiling balancing tests). All of these cases, however, have dealt with anonymity rights during the discovery process. No case has considered the issue presented here—whether and under what circumstances a court can properly protect a party’s anonymity after judgment. This is an important distinction. The prejudgment cases often deal with a plaintiff’s need to unmask a defendant in order to effect service of process.

[...]

In contrast, the entry of judgment against a Doe defendant largely eliminates these concerns because the plaintiff will have established liability. On the other hand, where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant.

Setting itself up with opposed theories, the court spends the next several questions thinking out loud. Public litigation carries a presumption of open judicial records, which includes identifying information pertaining to both sides of lawsuit. In this case, however, not only is one side still anonymous, but even the plaintiff is unaware of the true identity of the person it's suing. This stands in contrast to sealed cases where both parties are known to each other, but withheld from the general public. The fact that Doe lost a copyright infringement case weighs heavily against his continued anonymity.

[W]here a Doe defendant’s speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.

This chilling effect could be argued using nothing more than Doe's anti-MLM blog. Certainly, there's plenty of evidence (both judicial and anecdotal) companies -- especially questionable ones -- like to silence critics. One good way of silencing persistent critics is eliminating their anonymity, making them more likely to be sued or otherwise harassed by the entities they criticize.

But the Appeals Court gets hung up on the copyright infringement, even though there's little on the record here showing Doe was a repeat offender. He could have been more careful in his use of the copyrighted MLM manual, but his quick compliance with SMT's demands and district court's order shows he had no intention of thumbing his nose at copyright law.

Doe's compliance seems to weigh against an order for unmasking on remand, even though Doe is definitely the loser in this legal battle. The Appeals Court tries to weave both of these disparate views into a single, mostly-cohesive text, but fails.

We do not agree either that the district court lacks discretion to allow Doe to remain anonymous or that Doe’s legitimate First Amendment right to speak anonymously is collateral to these proceedings. Although Doe’s infringing speech is not entitled to First Amendment protection, that speech occurred in the context of anonymous blogging activities that are entitled to such protection. An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.

Further, we do not agree that allowing Doe to remain anonymous would necessarily diminish the impact of the ordered injunctive relief. The dissent’s suggestion that a failure to unmask Doe would obligate the district court and Team’s attorneys to monitor Doe’s activity is inapposite because the district court declined to enter any ongoing injunctive relief. Since Doe has already complied with all aspects of the court’s order, there will be no need for monitoring regardless whether the district court ultimately decides to unmask Doe. Finally, to the extent that the concerns identified by the dissent cut in favor of unmasking Doe, the district court should consider those factors on remand.

The Appeals Court sounds like it might be inclined to let Doe keep his anonymity, but pulls back from that bright line and boots it back to the lower court. The good news, as far as Doe is concerned, is that the lower court already ruled in favor of his arguments against unmasking. Nothing in this ruling suggests the lower court should feel compelled to overturn its earlier decision.

SMT's insistence the infringer/critic be unmasked smacks of pure vindictiveness. Doe has complied with all requests and orders, leaving very little for SMT to truly complain about, especially as the lower court did not issue an order requiring monitoring of Doe's blogging for possible further violations. If SMT is given a win, it will do more than chill Doe's speech. It will chill the speech of anyone criticizing SMT and its business practices. It certainly wouldn't be a good precedent to set: allowing more powerful entities to unmask weaker ones if they can secure some form of judgment in a court. Hopefully, the lower court will come to the same conclusion the second time around.

Filed Under: 6th circuit, anonymity, dmca, free speech, unmasking
Companies: automattic, signature management team

Angry, Threatening Lawyer Fails To Sue As Promised, Drops His SLAPP Suit

from the wise-decisions dept

A couple weeks back we wrote about the somewhat odd decision making of an angry lawyer named Jason Lee Van Dyke, whom we'd also written about years ago for some spectacularly bad lawyering. This year he's also gotten really really pissed off at three (very different) people: Ken White, Asher Langton and Talib Kweli. The first two have appeared on Techdirt many times. Ken is a criminal defense and First Amendment lawyer. Asher has an astounding ability to sniff out frauds online. And Talib is a musical genius among other things. But, Van Dyke has spent months angrily lashing out about them on the internet (well, the lashing out at Kweli was more recent).

When we last checked in on him, he was threatening to add those three individuals -- plus the Huffington Post -- to a fairly obvious SLAPP suit that he had already filed in Texas against an Ohio-based publication called the Mockingbird. Lots of people had pointed out that Texas has a fairly robust anti-SLAPP law, which could lead to Van Dyke having to pay up -- and Van Dyke's response (not atypical from his earlier responses) was to lash out and threaten more lawsuits and to promise violence if he was sanctioned.

He then went so far as to contact Mockingbird's lawyer to ask for leave to amend the existing lawsuit with the three individuals mentioned above, plus the Huffington Post (which had also written about the lawsuit).

So... despite the promises to add more names to the lawsuit, that didn't happen. And despite the claims that he was going to just keep fighting the lawsuit... a few days later, Van Dyke agreed to dismiss the suit with prejudice, and the judge agreed. Gerry Bello at Mockingbird has a post on this as well, which reveals that Van Dyke told Bello's lawyer that the reason for the dismissal was that his "immediate supervisor at the company where I am employed" had "instructed" Van Dyke to dismiss the case. It is not clear where Van Dyke is currently employed or who told him to do this. Van Dyke has generally held himself out as being self-employed as a lawyer.

One hopes that this is actually Van Dyke recognizing that repeated threats of both violence and lawsuits against critics is not a particularly wise idea. I'm not holding my breath that this is the case, however. In the meantime, we've heard from others that various bar complaints have been filed against Van Dyke, and given his actions and statements, at the very least you have to wonder how much longer he'll be able to practice law, no matter who "employs" him.

Filed Under: anti-slapp, asher langton, defamation, free speech, gerry bello, jason lee van dyke, jason van dyke, ken white, slapp, talib kweli, threats
Companies: mockingbird

Security Researcher Held In Jail For 8 Months Because He Wrote An Angry Blog Post, Released For Now

from the first-amendment-issues dept

Over the past month or so we've written a few times about security research Justin Shafer. As you may recall, he first came to our attention, when the Justice Department decided to subpoena the identities of five Twitter users because Shafer had tweeted a smiley emoji at them. No, really. I'm not exaggerating. That's literally what happened. Shafer saw some Twitter users discussing a case totally unrelated to his own, tweeted an emoji, and the DOJ is demanding the identity of those he tweeted the emoji at.

That then got us more interested in what the hell happened to Shafer -- where it appears that the DOJ had a weird vendetta against him. His house was raided three separate times -- mainly because he had helped expose security problems with some software. The company complained that Shafer had violated the CFAA, and thus his house got raided and all of his family's electronics were seized. Of course, he wasn't charged with anything because there was nothing to charge him with. Then there was a second raid. Same result. No charges. Shafer was apparently getting fed up with FBI agent Nathan Hopp (he initially misheard the name as "Hawk"). Eventually, after finding out about another case that Hopp was involved in, he did some online digging of public, online records to find out more about Hopp. Then he did something unwise, and which I would not recommend, but which it's hard to see how it could be illegal. And that is that he contacted Hopp's wife, after finding her Facebook page -- and asked her to have Nathan return the stuff that had been seized.

And, yes, this is a dumb thing to do, no matter how angry or frustrated you might be. But... is it criminal? Well, the DOJ claimed it was, leading to a third raiding and Shafer being arrested for "cyber stalking." And then things got even crazier, because after being released on bail, Shafer was quickly dragged back to jail and had been locked up since April, because he blogged about the case. The conditions of his release said that he couldn't use social media to contact Hopp or his family. The DOJ claimed -- and a magistrate judge amazingly agreed -- that the blog post (1) was social media (2) was "indirect contact" and (3) broke the conditions of his release. And thus, he was in jail. Last month, his lawyers appealed that decision, claiming it was a First Amendment violation.

And, on Friday he was released from jail as a judge agreed to release him, pending the trial (also, apparently there's a superseding indictment coming soon, so we'll see if the DOJ has anything more than "he sent some inappropriate Facebook messages."). The conditions of his release still seem fairly ridiculous as it includes this:

The defendant shall not have access to any computer.

Of course, immediately after that it also talks about how he can use a computer, but all usage will be monitored. It's a bit confusing, but it appears that he can use his own computer in very limited ways, if it has monitoring software, but cannot use other computers. And he's barred from social media (Facebook, Twitter). He's allowed to blog, if the blog posts "comply" with the rest of the release conditions -- including not "providing identifying information" on the people he's accused of "cyber stalking" or encouraging or inviting "others to contact or harass such persons." And, generally speaking, it's probably a good idea for him to refrain from such activity whether or not it was a condition of getting freed.

Still, it's difficult to see (a) why he was arrested in the first place and (b) why he sat in jail for 8 months over a blog post. The whole case still just stinks of the DOJ getting angry at the guy because he didn't roll over when they raided his house twice.

Filed Under: cfaa, doj, fbi, first amendment, free speech, justin shafer, nathan hopp, security

Angry Lawyer Already Engaged In A SLAPP Suit Promises To Sue More Critics, Use His Machine Gun If Sanctioned

from the well,-that'll-go-over-well dept

Earlier this year, we mentioned the Texas lawyer Jason Lee Van Dyke in relation to a story in which Twitter, ridiculously, banned Ken "Popehat" White after he wrote about threats from Van Dyke. We had written about Van Dyke years earlier when he sued the Tor Project because a revenge porn site was using Tor. We also noted that that case involved a guy who had been declared the leader of a hate group, Kyle Bristow -- and appeared to involve Van Dyke deliberately and knowingly "serving" the wrong party. The revenge porn site that Van Dyke claimed he was targeting had sarcastically provided Bristow's address as its address to mock Van Dyke, and Van Dyke then claimed he had properly "served" the revenge porn site by serving it on Bristow.

That post, from back in 2014, also included an awful lot of Van Dyke cursing out people and threatening to sue lots and lots of people. Oh, and also declaring "it's my job to violate the civil rights of people like you" to one critic. The more recent story, involving threatening Ken White and Asher Langton, showed that not much has changed with regards to anger management and Van Dyke. I won't rehash the entire story, but Ken White summarized it earlier this year. Just suffice it to say, Asher Langton turned up quite a bit of evidence suggesting that Van Dyke was advertising his legal services to white nationalists on Stormfront.

Since then, Van Dyke has, repeatedly, threatened to sue and (separately!) to physically harm both White and Langton. He's also declared himself to be part of the "Proud Boys" -- a nutty group of self-declared chauvinists, who get upset if you suggest they're racists or neo-Nazis, even if many of the distinctions appear to be quite fuzzy. Either way, they appear to get quite upset if anyone calls them those things, even though the press regularly associates them with racists, neo-nazis or the "alt-right."

Van Dyke has also threatened to sue a number of news organizations for these claims, and actually did sue a small local news site in Ohio called the Mockingbird. The Mockingbird published this article about Proud Boy antics in Ohio -- which led Van Dyke to send Mockingbird a letter requesting the site delete the article, no longer write about the Proud Boys and pay $10,000. Mockingbird's Gerry Bello responded appropriately, telling Van Dyke to fuck off, but also stating Bello's opinion (backed up with evidence) that Van Dyke is a Nazi.

It is over this letter that Van Dyke then sued (not the original article that inspired the bumptious threat letter). The lawsuit was filed in county court in Denton, Texas, which seems unwise. Texas actually has a fairly robust anti-SLAPP law that the courts have construed broadly to cover all sorts of SLAPP suits, making Texas one of the strongest defenders of free speech in the country.

Anyway, you can read Van Dyke's complaint here. Mockingbird removed the case from the local county court to the federal district court late last week (we'll see if Van Dyke tries to block that). Van Dyke is representing himself. The crux of the lawsuit:

On information and belief, Defendants are associated with a domestic terrorist collective known as “Antifa” that prides itself on harassing, defaming, and committing acts of violence against persons and groups that espouse conservative groups. In this instance, Defendants wrongfully accused members of the Houston, Texas and Columbus, Ohio chapters of “The Proud Boys” of the following: (a) being “neo-Nazis”; (b) engaging in a hate crime by placing hand-drawn swastikas into mailboxes; (c) engaging in “ethnic cleansing” during hurricane relief efforts in the Houston area; and (d) roaming the nation in an effort to commit acts of mass murder against minorities. It should be noted in this case that Plaintiff was present with the Houston Proud Boys during Hurricane Harvey relief efforts and assisted them in rescuing residents in need of evacuation and in the distribution of relief supplies such as food, bottled water, cleaning supplies, and other items to residents of areas affected by the hurricane.

Plaintiff sent a demand letter for Defendants to issue a retraction of these statements (which clearly meet the criteria for defamation per se) and Defendants responded by publishing the letter attached hereto as Exhibit “B” on their website

Because of all of this, Van Dyke insists Bello/Mockingbird have committed libel per se, specifically in reference to the statements about Van Dyke being a Nazi, as well as statements Bello made claiming Van Dyke had a previous arrest and conviction. Bello claims this was "on weapons charges and domestic violence." Van Dyke counters that it was a misdemeanor weapons charge -- not domestic violence -- and has since been expunged. He also claims that Bello wondering if Van Dyke is forum shopping his lawsuit is defamatory, as might also be Bello's statement that under his conviction Van Dyke should not be allowed to possess firearms. Amusingly, in Van Dyke's lawsuit, he also disputes that he was the lawyer pitching for business on Stormfront, but insists that he's not suing over that because it's not libel "per se."

It does appear that Bello certainly goes a bit closer to the line than I imagine most lawyers would advise in making statements about Van Dyke, but the "Nazi" line is clearly protected opinion or rhetorical hyperbole. The throwaway line about forum shopping is clearly not defamatory either. The statement about whether he can possess firearms was presented as a question rather than a statement, so again is a stretch. As for getting the specific details of the conviction wrong, Bello doesn't cite where he got that information, but it is true -- as Van Dyke readily admits -- that he was convicted on a misdemeanor firearm charge. So Van Dyke would have to show that Bello not only got things wrong beyond that in a defamatory way, but that Bello knew the information he posted was false. That's... a tough bar to reach.

Bello/Mockingbird's "Original Answer" is fairly short on details, other than denying all the claims and (for now) throwing out all possible affirmative defenses (I assume a more specific answer will be forthcoming later). Bello's lawyer has also said that they'll file an anti-SLAPP motion, though that does not appear to have happened yet.

Meanwhile, Bello has launched a crowdfunding campaign as well.

Oh, and we're not even remotely done yet. A few weeks back, Van Dyke also got into a Twitter spat with, of all people, Talib Kweli. While the conversation is now gone (in part because Twitter recently suspended Van Dyke's account), here's how Kweli describes it:

“His first tweet to me was that he was a defense attorney and worked with mentally challenged people,” explained Kweli. “He wrote, ‘You are stupider than the mentally challenged people I work with,’ and so that caught my eye immediately, because why would a defense attorney be upset at a black stranger and starting using his own clients to engage in harassment?”

Kweli responded to the tweet, explaining that he doesn’t start arguments, but is willing to engage when challenged. “And so, I engaged him,” he said. “And the way I engage people who harass me like that is I always ask them to explain their position, because if you ask a racist or a bigot to explain their position, it falls apart.”

As this went on, Kweli eventually posted Van Dyke's publicly available business contact info -- and, not unlike Ken White, Twitter stupidly temporarily suspended Kweli's account, because (again) Twitter is bad at understanding the difference between abuse and calling out abuse. Over the last few months and weeks, Van Dyke has been ranting about Kweli, Langton and White. He even wrote up and posted completely made up stories about Langton and White, calling them satire. It seems like he thinks he's proving a point, though what point is unclear.

As for why Van Dyke was finally suspended from Twitter, it was apparently for tweeting a pretty gruesomely horrible racist tweet -- involving both the n-word and a noose. In the HuffPo article, they spoke to the president of the Texas state bar, who does not seem happy about Van Dyke's actions:

“The statements attributed to this individual are reprehensible and contrary to the values we hold as Texas lawyers,” State Bar of Texas president Tom Vick said in an email to HuffPost. “I condemn them in the strongest terms.”

Meanwhile, Van Dyke has been posting (on various other social networks) increasingly angry messages about Kweli -- many of which have pretty clear racist overtones, and some of which include threats of violence. He complains about Kweli being "uppity" while promising to beat him and skin him alive. He compares Talib to Amadou Diallo, the man assassinated by the NYPD in 1999. He also says that Talib will have to change his name to "Toby", a pretty damn likely reference to the famous scene in Roots in which Kunta Kinte is whipped by his owner, until he says his name is Toby -- at which point the owner says "Aye, that's a good n****r." So, yeah. If Van Dyke is trying to portray himself as not being racist, he's not doing a very good job of it so far.

And, because Van Dyke never seems to find the bottom of the hole he keeps digging, Asher Langton posted the following screenshot of Van Dyke not only promising to sue White, Langton, Kweli and the Huffington Post today, but also saying that he doesn't care if he gets disbarred or sanctioned, and if they do he'll defend himself with a gun.

If you can't see that, it says:

No longer welcome where I've trained for years. This is the final straw. Langton, White, Kweli, HuffPo - they are all getting sued first thing Monday morning. This ends now. They can disbar me if they want, I don't give a damn. If they sanction me, my property is defended with a 50 BMG.

I'm guessing that the Texas bar might not like that one so much either -- nor any court where these lawsuits may be filed. Of course, we saw similar threats in what we posted about Van Dyke years ago as well, which did not lead to lawsuits. This time, he has sued Bello and Mockingbird, though, so perhaps he will attempt to follow through on these other threats also. Apparently he has sent Mockingbird/Bello's lawyer the following email, asking to amend the original complaint to raise the damages from $60,000 to $10 million and to add White, Langton, Kwelli, Huffington Post and Andy Campbell (the author of the HuffPo piece).

It is, at the very least, unclear how he thinks any of this helps him rather than digging him deeper and deeper into a hole. As far as I can tell, Van Dyke seems upset that he's facing the consequences of his own actions -- which include threats of violence and lawsuits in addition to a variety of other highly questionable statements. And rather than recognize that perhaps he shouldn't do those things, he's responding to people who document his own statements by doing even more of the same, which only continues the cycle. We'll see if he's actually foolish enough to follow through on this lawsuit. It is unlikely to end well. Not only are there unlikely to be any legitimate claims, it makes no sense to add them to this other lawsuit, which is about an entirely different set of statements. Randomly joining together other people who have called you out separately hardly seems like good lawyering. It does, however, remind us of Rakofsky v. the Internet, in which a young (and not very good) lawyer sued basically everyone who criticized him. It didn't end well. And, of course, that one didn't include threats of violence mixed in.

I suspect he's not interested in taking our advice -- he has regularly mocked Techdirt any time we've written about him -- but there's a time when the correct response is to stop digging. Suing people for calling you out won't end well. Threatening violence, repeatedly, over criticism is not a good look, especially for a lawyer.

Filed Under: asher langton, gerry bello, jason lee van dyke, ken white, proud boys, slapp, talib kweli, texas, threats, violence
Companies: mockingbird