Judge Tosses Sarah Palin's Defamation Suit Against The New York Times, Says No Actual Malice

from the more-speech-still-better-than-shutting-people-up dept

On June 14th, the New York Times published an editorial concerning violent rhetoric being deployed during political races. In it, the author made an incredibly bad claim:

Was this attack [by Hodgkinson] evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.

This just simply wasn't true. To begin with, Palin's map contained only political districts under stylized crosshairs, not faces of legislators. Not only that, but there's been no conclusive link between Palin's crosshair map and Loughner's shooting. This was noted in two corrections published by the New York Times the next day, which also excised the two false statements.

Sarah Palin sued the New York Times for defamation a few weeks later because it apparently just wasn't enough to catch a "fake news" purveyor making some truly laughable assertions in an op-ed. The defamation suit has died a quick death, although Palin's claims were investigated with a bit more thoroughness than usual once the parties had entered their motions.

An examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice. And while many people think they know what's meant by actual malice, it's probably not what you think. In the legal context, actual malice requires "knowledge" of falsity before publication or reckless disregard. It doesn't just mean that you were trying to be mean (indeed, you could argue that "actual malice" doesn't require any... um... actual... malice). In this case, the court just can't find any knowledge of falsity -- and thus, no actual malice. [PDF link]

[E]ven then, a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence, or the complaint must be dismissed.

Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice.

The court also points to the proactive measures taken by the Times to correct the misstatements after they were brought to its attention as evidence of a lack of actual malice. The corrections weren't prompted by a lawsuit or threats of a lawsuit, but rather by readers displeased the Times would make a connection between Palin and Loughner that had never been established.

Even if the Times hadn't made these immediate efforts, the court still would likely have cut the paper as much slack as it could, given the First Amendment implications of the lawsuit.

Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity.

To entertain the theory the press can be held civilly responsible for swiftly-corrected errors would chill reporting on pretty much anything. To take the press to court is to take the First Amendment to court. A higher standard must be met by plaintiffs.

Filed Under: actual malice, defamation, first amendment, free speech, public figure, sarah palin
Companies: ny times

Nazis, The Internet, Policing Content And Free Speech

from the many,-many-issues dept

I'm going to try to do something that's generally not recommended on the internet: I'm going to try to discuss a complicated issue that has many nuances and gray areas. That often fails, because all too often people online immediately leap to black or white positions, because it's easy to miss the nuance when arguing about an emotionally potent issue. In this case, I want to discuss an issue that's already received plenty of attention: how various platforms -- starting with GoDaddy and Google, but with much of the attention placed on Cloudflare -- decided to stop serving the neo-Nazi forum site the Daily Stormer. Now, I'll note that as all that went down, I was focused on a multi-day drive out to (and then back from) the middle of absolute nowhere (a beautiful place) to watch the solar eclipse thing that everyone was talking about -- meaning that for the past week I've been disconnected from the internet quite a bit, which meant that I (a) missed much of the quick takes on this and (b) had plenty of time to really think about it. And, the simple fact is that it is a complicated issue, no matter what anyone says. So let's dig in.

Let's start with the basics: Nazis -- both the old kind and the new kind -- are bad. My grandfather fought Nazis in Europe and Northern Africa during WWII, and I have no interest in seeing Nazis in America of all places. But even if you believe that Nazis and whoever else uses the Daily Stormer are the worst of the absolute worst, there are many other issues at play here beyond just "don't provide them service." Of course, lots of services are choosing not to. Indeed, both the Washington Post and Quartz are keeping running tallies of all the services that have been booting Nazis and other racist groups. And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone. There's certainly no fundamental First Amendment right for people to use any service they want. That's not how free speech works.

A second complicating factor is that there are different levels of services and their decisions can have very different impacts. So, for example, if some blog doesn't allow you to comment, that's not a big deal on the free speech front since there are millions of other places you can comment online. But if no one will even provide you any access to the internet, then there are some larger questions there about your right to access the entire network that everyone uses to speak. And there's a spectrum between those two end points. There are only a few ISPs, so if Comcast and Verizon decide you can't be online, you may not be online at all. There are multiple places where you can register domains, but if all the registrars blacklist certain providers, then you can effectively be banned from the open internet entirely. It's harder to say where things like Facebook, Google and even Cloudflare fall along that spectrum. Some might argue that you don't need any of those services -- while others might say that Google and Facebook are so central to everyday life that being forced off of them puts people at a serious disadvantage. Cloudflare is even more complicated, since it's just a middleman CDN/DDoS protection/security provider. But, as the company's CEO admitted in kicked off the Daily Stormer, there are very few other services online that could protect a site like that from the kinds of DDoS attacks that the site regularly gets (the fact that Daily Stormer briefly popped up on Dream Host this week and almost all of Dream Host was hit with massive, debilitating DDoS attacks just emphasizes that point).

But this issue is key: not all internet services are the same, and no single rule should apply across all of them. It simply wouldn't make sense.

Recognize: this is more complicated than you think

As many experts in the field have noted, these things are complicated. And while I know many people have been cheering on each and every service kicking off these users, we should be careful about what that could lead to. Asking platforms to be the arbiters of what speech is good and what speech is bad is frought with serious problems. As Jillian York eloquently put it:

I’m not so worried about companies censoring Nazis, but I am worried about the implications it has for everyone else. I’m worried about the unelected bros of Silicon Valley being the judge and jury, and thinking that mere censorship solves the problem. I’m worried that, just like Cloudflare CEO Matthew Prince woke up one morning and decided he’d had enough of the Daily Stormer, some other CEO might wake up and do the same for Black Lives Matter or antifa. I’m worried that we’re not thinking about this problem holistically.

Kate Knibbs, over at The Ringer, also has a nuanced article about this, pointing out how relying on internet platforms to "police hate" results in all sorts of potential problems and contradictions. Even if we all agree that Nazi propaganda is bad, there's a big question about whether or not this (censorship by platforms) is the proper response:

The world will be a better place if technology companies are able to disrupt the spread of propaganda. But while their post-Charlottesville efforts are an encouraging sign that technology companies are finally treating the prospect of domestic right-wing extremist groups as a serious threat, the way these companies have chosen to address that threat is an unsettling reminder that they are near-unfettered gatekeepers of speech. We are online at the whim and for the profit of a few extremely wealthy multinational corporations with faulty track records for moderating content. As overdue and appreciated as their efforts to root out hate groups from the digital world are, their efforts to preserve an open internet should be undertaken with equal urgency.

This, in fact, is the same very public struggle that Cloudflare's CEO, Matthew Prince, has been having over the issue. As he explained in his original statement, he's not really comfortable with the fact that one person -- even himself -- basically has the power to kick someone off the internet entirely. A few days later, in a (possibly paywalled) piece at the Wall Street Journal, he's still second guessing himself.

Your black and white quick take on this misses the point:

Yes, I know that some of you are angrily getting ready to scream one of two (contradictory) things in the comments: (1) free speech should mean that all these sites should be allowed to remain up or (2) oh, come on: Nazis are obviously bad and there's no slippery slope in denying them internet services. But there are strong responses to both of those extreme viewpoints, which come from opposite ends of the spectrum. Again, free speech also means that platforms have rights to choose what speech they host and what speech they don't host. Don't like it? Start your own platform. Similarly, no one truly believes that all content must be allowed on all platforms at all times. For anyone who claims that's not true, I'll just point to the email filter you use to show you're wrong. We accept filtering decisions in our email because we know that a completely unfiltered experience is so filled with garbage as to make it unusable. The question then becomes one of where do we draw the lines for moderation.

As for potential comment (2): yes, Nazis are obviously bad. But here's the problem: there are plenty of people (including some of those who are desperately typing out argument (1) above) who will argue that other groups -- antifa, BLM, the SLPC -- are just as bad. And then... you're just left with a fight on your hands about who's bad. And that doesn't solve anything. Even worse, it puts tremendous subjective power into the hands of those in charge. And, specifically for those who are making this "Nazis are obviously bad, so there's no slippery slope" argument, think about who's in charge right now. Do you really want them defining who's "bad" and who's "good"?

On top of that, we're constantly pointing to example after example after example of platforms being really bad at properly determining what's really bad and what's good. Doing so requires time and context -- which are two things that don't come easily on the internet.

At the very least, putting the onus on the internet platforms to be required to make these kinds of calls means that you're trusting a very small number of self-appointed people -- with very different incentives -- to be the world's speech police. And that should be concerning. Some argue there's no slippery slope argument in banning Nazis because they're Nazis. But there is a different slippery slope: the appointment of private, for-profit platforms being the speech police and the arbiters of what's good speech and what's bad speech. Yes, as noted, those platforms have every right to determine what they don't want on their own platforms, but as we move along that spectrum discussed above, and the power of a centarlized platform could mean cutting people off entirely, the overall impact of these decisions becomes greater and greater. And rushing headlong into a world where we trust private companies to make speech determinations just because they built a scalable platform seems like the wrong way to go about things. Just because you can build a big platform doesn't mean you're good at determining who should be allowed to speak.

Merely censoring doesn't solve the problem

This is a key point that hasn't been brought up very much, but as the coiner of "The Streisand Effect," I'm kind of obliged to do so: it's a pretty common gut reaction to really awful content that the best (and sometimes "only") option is to silence it. And there may be some narrow cases where that actually works. But all too often, attempts to silence or censor content only lead to more attention getting paid to that content. And, in the case of Nazis, it actually has a reinforcing impact that isn't widely considered. Many of the ignorant folks who jump on board with these groups (and, yes, they are ignorant) believe that they're being "edgy" and "contrarian" and "outside the norm." And pulling down their websites reinforces this view. It doesn't make them rethink their ignorant hate. It makes them think they're on to something. They interpret it as "the establishment" or "the swamp" or whoever not being able to handle the truth that they're bringing.

It certainly doesn't do much to educate the ignorant of why their beliefs are ignorant. This is why we often talk about the importance of counterspeech, which can be surprisingly effective, even in dealing with Nazis. But counterspeech isn't always the answer and isn't always effective. There is no counterspeech to deal with spam, for example. But that's why we've developed a system of tools and filters to deal with spam, but don't legally mandate that, say, domain registrars stomp out spammers.

This is why it's complicated:

Up top, I noted that the whole thing is more complicated than many people are willing to recognize. And it's because of the competing factors I discussed above. Some level of moderation is fundamental, necessary and right. Your email spam filter reveals that you know this is true. And platforms do have every right (including the First Amendment) to refuse service to assholes. But, at the same time, we should be concerned about a few centralized powers, or even individuals, being in a position to make these decisions on an ad hoc basis. This may not apply to smaller platforms, but the big guys that are often seen as "necessary" for participating in public life, certainly raise some questions.

So, how the hell do you weigh these seemingly competing factors? Some moderation is necessary, but expecting platforms to police opens up a whole host of problems from arbitrariness to the powerful silencing the less powerful and more.

Towards a (still complicated) solution:

Not surprisingly, EFF's take on the whole situation brings us closer to a framework for thinking about this issue. In fact, while they don't state this directly, in much of the world, we do have at least some history with a system that has faced similar complications and has a process. That system is the existing judicial system, and that process is due process. It is, of course, far from perfect. But there may be lessons we can learn from it. EFF suggests pulling in some of its features including transparency and a right of appeal.

Other elements of the Net risk less when they are selective about who they host. But even for hosts, there’s always a risk that others—including governments—will use the opaqueness of the takedown process to silence legitimate voices. For any content hosts that do reject content as part of the enforcement of their terms of service, or are pressured by states to secretly censor, we have long recommended that they implement procedural protections to mitigate mistakes—specifically, the Manila Principles on Intermediary Liability. The principles state, in part:

• Before any content is restricted on the basis of an order or a request, the intermediary and the user content provider must be provided an effective right to be heard except in exceptional circumstances, in which case a post facto review of the order and its implementation must take place as soon as practicable.
• Intermediaries should provide user content providers with mechanisms to review decisions to restrict content in violation of the intermediary’s content restriction policies.
• Intermediaries should publish their content restriction policies online, in clear language and accessible formats, and keep them updated as they evolve, and notify users of changes when applicable.

In other words, for these core, centralized chokepoints, there needs to be transparency and due process.

Of course, there are dangers in that as well. Last year, in hosting a panel on just this subject at Rightscon, we discussed the idea of internal corporate "due process" for moderating content. Medium's Alex Feerst discussed how they argue these issues out, as if they're in court, with someone representing each side. But when I asked about whether or not the "internal case law" would ever be made public, the answer was likely no. And you can also understand why. Because there are certainly some individuals and people who specifically are seeking to game the system (think: spammers and trolls). Revealing the exact policies upfront gives them extra ammo on how to game the system, violating the spirit of those rules, while not the letter. In other words, some would argue (compellingly) that some aspects of transparency here could make the problems even worse.

So while I'm certainly all for more due process, and some associated transparency, I worry that the requirements of transparency are not entirely realistic either -- especially in areas with rapidly changing activities and norms.

Can we rethink the internet?

To me, this keeps reminding me of an article I wrote two years ago, about why we should be looking at protocols, not platforms. The early days of the internet were built on protocols -- and the power was in the end-to-end nature of things. But with those protocols, people could build their own implementations and software to work with those protocols. The power was thus at the ends. Individuals could choose how they interact with the protocols and they could implement their own solutions without being completely cut off. You could filter out the content you didn't want. But the choice was yours. Over the last decade, especially, we've moved far away from that ideal (in part because there appears to be more money in locked-in, centralized platforms, rather than more distributed protocols). But, opening things up offers some opportunity to allow good things to happen.

Let the ignorant Nazis gather -- they're going to figure out a way to do so anyway. But have widely available (and recommended) filters to allow most decent people to ignore them. Or, let others focus on using counterspeech against them. Let various attempts at responding to and diffusing the power of ignorant propaganda bloom, rather than assuming that the best response is to just make it all disappear entirely. This, of course, does not solve everything. But it certainly seems like a better solution than hoping a few giant companies magically figure out how to become benevolent dictators over what content is allowed online.

In the end, there isn't an "easy" solution to any of this, and anyone pitching one is almost certainly selling snake oil. Expecting to solve "hate" by allowing a small number of internet platforms to censor "bad" people is a fool's errand. First, it's likely to be ineffective, and second, it will inevitably lead to bad results, with content you don't think should be blocked getting blocked. Platforms may have the right to police and moderate their own content, but demanding that they do so in all cases is going to lead to bad results. In the end, some of it needs to come down to a recognition of the different levels of service along the spectrum. Further down the line, with smaller services on the network, any moderation should be seen as a choice those platforms make. But as you move up the chain, at some point we need to be a lot more careful about the power of certain players to completely cut people off from the internet. This is the problem of an internet that has become too centralized in some areas. And, to me, it still feels the better solution isn't putting more power in the hands of massive centralized "infrastructure" providers, but pushing the power out to the ends, in the spirit of the original, open end-to-end internet. Give the ends of the network the power. Let them share tools and filters among each other, but let's not rush to demand that a few key centralized players be the final arbiters of speech online.

Filed Under: daily stormer, free speech, infrastructure, moderation, nazis, platforms, policing, slippery slope
Companies: cloudflare, facebook, godaddy, google

Trump's Latest Nonsensical Announcement About Censoring The Internet

from the want-to-try-that-again? dept

While many of President Trump's strongest supporters still insist that he's "bringing free speech back," the truth is that Trump has been advocating for censoring the internet since very early in his campaign for the Presidency. Of course, his position on this has never been entirely coherent -- and he sometimes swings wildly around with his emotional ideas of what he likes, often with little basis into legal, political or technical realities. His latest is a bit like that as well. In a speech in Reno he suddenly burst out with a barely comprehensible policy position on keeping ISIS off the internet:

"I will tell you, we are going to start working very hard on the Internet because they are using the Internet at a level that they should not be allowed to use the Internet," Trump said during a bill-signing event with the American Legion in Reno, Nev. "They're recruiting from the Internet and we are going to work under my administration very hard so that doesn't happen."

Now, it's one thing to argue for working on ways to disrupt ISIS recruitment online. I'm all for doing counter-programing, education and the like around that. But that's a far cry from "they should not be allowed to use the internet." That statement packs quite a wallop. And it's easy to chalk it up to "Trump being Trump" and saying things without understanding the impact of what he's saying (and without him really understanding the details behind these issues), but considering the attacks on free speech and on the ability to use the internet these days, we should be pretty vigilant about this stuff. And, somewhat ironically, you'd think that some of Trump's most vocal supporters would be against him on this. After all, they're the ones who keep getting kicked off various online platforms and complaining about how that shouldn't be allowed. But if Trump actually comes up with a plan that says ISIS people can't use the internet, that's a clear recipe for excluding anyone you dislike from using the internet at all.

And, of course, all of this is a lot more complicated than people seem to think. Just in the last week, we've had two separate stories showing how YouTube's attempts to stop terrorists and Nazis from using its platforms, both backfired badly -- with the company actually taking down people calling out terrorists and Nazis.

There's a larger point here beyond our President being unwilling or unable to deal with the nuances of his proclamations on who should and shouldn't be able to use the internet: and it's that these things are a slippery slope that involve a lot of tricky problems and many, many serious unintended consequences, even when done with care and thoughtfulness. Rushing into internet censorship because "terrorists bad" is going to be a hell of a lot more destructive to the free speech and free association rights of the public than it would be for actual ISIS members.

Filed Under: censorship, donald trump, free speech, internet, isis, terrorists

Louisiana's Criminal Defamation Law Abused Again, But This Time The Gov't Gets Away With It

from the don't-insult-the-king(s) dept

Louisiana has a bad law that needs to be taken off the books. (Well, it probably has several but this discussion will only deal with one.) Previous court decisions have ruled the law unconstitutional but somehow it lives on to be a vehicle of harassment by law enforcement, often at the encouragement of government officials.

This would be Louisiana's criminal defamation law. This was the law (ab)used by Sheriff Jerry Larpenter of Terrebonne Parish to shut down an online critic by raiding the blogger's home and seizing several electronic devices. The target of the supposed defamation was a board commissioner -- someone who wasn't actually covered by the law, which only provides for charges when the person allegedly defamed is not a public figure.

A federal appeals court recently stripped Sheriff Larpenter of his immunity for abusing this law. It stated the outcome bluntly in the first sentence of its opinion.

Some qualified immunity cases are hard. This case is not one of them.

The court points out both the Supreme Court of the United States and Louisiana's highest court have reached the same conclusion: the law cannot be applied to speech targeting public officials.

Concluding that "[i]t is for the [state] Legislature to correct [§§ 14:47-49's] constitutional infirmity"—namely, "its overbroad application" as identified in Garrison—the Louisiana Supreme Court held §§ 14:47-49 "to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals engaged in public affairs." Id. at 668; see also State v. Defley, 395 So.2d 759, 761 (La. 1981) (observing that § 14:47 "is unconstitutional insofar as it punishes public expression about public officials").

Since Snyder, the Louisiana legislature has not revisited §§ 14:47-49. The Louisiana Supreme Court's holding as to the reach of § 14:47 therefore remains the law of the land.

Not that anyone appears to have noticed. Sheriff Larpenter ignored two high court rulings to bring charges under the law in a way that specifically violated these court findings. But Larpenter isn't the only law enforcement official abusing the law. And far from the only government official in general.

The Fifth Circuit Court of Appeals has handled another case springing from the unconstitutional application of the state's criminal defamation law. While the findings aren't nearly as favorable to the appellant, the decision [PDF] does point out the law cannot legally be used the way it has been in this case.

Just like the Larpenter case, this one begins with offended public officials.

Sometime before April 16, 2012, the Livingston Daily Times published an opinion piece titled “Sue Happy Seven Councilmen,” which discussed complaints about the Livingston Parish Council’s misuse of public funds. A URL link to the piece was posted on a separate Facebook page maintained by the Livingston Daily Times. The Facebook post was open to public comment. Using a pseudonym, someone posted “critical comments” about three Council members—James R. Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent (the “Council Defendants”). McLin alleges that the statements “merely constituted criticism of official conduct of public officials.”

Even if the comments were defamatory (something the court doesn't discuss), the correct response would be a civil suit, not criminal charges. But if the state legislature isn't actually going to repeal the shitty law, the following sort of things are going to keep happening.

On April 20, 2012, Parent filed a report with the Livingston Parish Sheriff’s Office (“LPSO”) alleging that the anonymous Facebook user had “posted a comment in regards to numerous elected counsel [sic] members.” In response, LPSO Detective Benjamin Thomas Ballard obtained subpoenas to Facebook and Charter Communications. The subpoena responses linked McLin’s home address to the Facebook account that posted the critical comments. Ballard obtained a search warrant for McLin’s home, and he and LPSO Detective Jack R. Alford, Jr. executed the search warrant on June 11, 2012. Ballard and Alford confiscated electronic devices and equipment, and a forensic analysis purportedly linked one of the confiscated computers to the anonymous Facebook user.

Anyone could have put a stop to this. But no one did, not even officers who -- as another federal court put it when dealing with this stupid statute -- are "presumed to know the law."

Upon receiving this information, Ballard, Alford, and other officers (together with Sheriff Jason Gerald Ard, the “Officer Defendants”), and the Council Defendants (together with the Officer Defendants, the “Defendants”) met on August 16, 2012, to discuss pursuing criminal charges against McLin. Some of the officers urged that criminal defamation charges under Louisiana’s criminal defamation statute—Louisiana Revised Statute § 14:47—were warranted. The Council Defendants asked to pursue the charges against McLin and “swore out criminal complaints” contending that they were each subjected to criminal defamation as a result of comments McLin allegedly posted to Facebook.

Thin skins and stupid laws are great for generating civil rights lawsuits. McLin turned himself in after finding out three arrest warrants had been sworn out. The district attorney dropped all charges four months later. McLin has a good case, one would think. According to the court, the lawsuit should be allowed to continue...

The factual allegations in McLin’s complaint sufficiently plead that the Defendants lacked probable cause to prosecute McLin for violating the Louisiana criminal defamation statute. McLin alleges that the anonymous Facebook comments—posted to a news story about Council members and the Council’s misuse of public funds—did not amount to criminal defamation but rather “merely constituted criticism of official conduct of public officials.” Speech criticizing the official conduct of public officials is protected by the First Amendment and does not constitute criminal defamation.

McLin further alleges that, upon linking the comments to him, and with knowledge that McLin’s comments were protected by the First Amendment, the Defendants met and conspired to create falsified affidavits for the purpose of obtaining arrest warrants on charges of criminal defamation. See Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987) (“[A]n officer charged with enforcing Louisiana law[] can be presumed to know that law.”). On these facts, which must be taken as true, we conclude that McLin’s complaint adequately alleges an unreasonable seizure because the Defendants could not have believed they had probable cause to arrest him.

Unfortunately, all the good news for McLin ends there. The court still grants immunity to the officers on the Fourth Amendment claims basically because McLin turned himself in rather than wait around to be arrested.

Here, we cannot say that every reasonable officer would understand that McLin was seized for purposes of the Fourth Amendment. To date, neither the Supreme Court nor the Fifth Circuit has decided that an officer’s acceptance of a voluntary surrender to an arrest warrant constitutes a Fourth Amendment seizure. And there is no a “robust consensus of persuasive authority”: only one circuit—the Eleventh—has found a seizure in these circumstances in a published opinion, and a majority of circuit courts have not yet weighed in. Although we now hold that McLin was seized, reasonable officers might not have understood that accepting McLin’s surrender to the arrest warrants, without imposing further pre-trial restrictions, constituted a seizure.

This decision contrasts sharply with the opinion released by Louisiana's district court. Both deal with the same law -- one twice ruled unconstitutional -- and yet no one abusing the law will suffer any ill effects. McLin did the cops a favor by showing up at their place with his hands ready for cuffing. And for that, he can't sue law enforcement officers who sought arrest warrants based on a law they should have known couldn't be used to bring charges against McLin.

Louisiana has enough rights violating going on at any given time. There's no reason legislators should allow this law to remain on the books any longer. The only thing it does is encourage people the law doesn't apply to (public figures) to work with compliant law enforcement agencies to shut down criticism.

Filed Under: defamation, free speech, jerry larpenter, louisiana

Defending Hateful Speech Is Unpleasant But Essential, Even When Violence Is The End Result

from the theater-for-fire-shouters dept

A weekend full of ugliness has resulted in the predictable: calls for the government to step in and do something about "hate speech." For some reason, a bunch of people decided the removal of a statue commemorating the loser of the First American Civil War was something they simply couldn't abide with, even though the "history" they were seeking to "preserve" generally celebrates the last holdouts against the abolishment of slavery.

It's not as though they were seeking to preserve history a government might feel like erasing. No one involved in the protest of the Robert E. Lee statue removal sought to build the US equivalent of the Holocaust Museum and needed the stone homage to serve an appropriate place of dishonor among the rest of the relics. This devolved into violence -- first hand-to-hand altercations, but later involving a vehicle driven directly into a crowd of counter-protesters, resulting in multiple injuries and one death.

While the president issued a tepid "hate and violence are bad" statement, people all over the internet were taking this as an indication free speech in this country has gone too far. (His second statement, delivered two days later, was much better.) Predictably, those attacking entities like the ACLU (which defended the white nationalist assemblage's right to hold a protest of the statue's removal) were mainly interested in shutting down speech they didn't like, while somehow preserving the sort of the speech they did like.

Glenn Greenwald has a long post at The Intercept detailing the misguided attacks on the ACLU as a result of its defense of the white nationalist protesters. As he points out, the left -- despite its reputation for tolerance of all races, creeds, colors, and sexes -- is a frequent supporter of government regulation of speech. Many on the left still cling to the mistaken belief the government has already outlawed "hate speech," when it has done nothing of the sort.

Those on the right would like to see the ACLU kicked out of Constitutional discussions as well. Greenwald notes the ACLU has been similarly attacked for such things as arguing for due process rights for accused terrorists.

The problem is: rights are rights. Those availing themselves of Constitutional rights usually aren't sympathetic protagonists. But it's the worst of the worst that need defending. No one starts throwing around stupid legislation when tepid, middle-of-the-road statements are made. No one fires off bogus lawsuits when unoffensive statements are delivered.

Many on both sides -- right and left -- find this concept hard to grasp. Some people believe there's a legal bright line between speech and hate speech, when in most cases, it's just a subjective measurement of how much these people empathize with the disputed statements. Hypocrisy abounds. Unfortunately, hypocrisy isn't limited to the rank-and-file. Legislators are able to at least threaten serious damage to the First Amendment by writing and sponsoring bills targeting the "worst of the worst." But most are written so broadly and badly, they can't survive a constitutional challenge.

Even our president partakes in the speech hypocrisy. He has threatened to open up libel laws and refers to any source of info he doesn't like as "fake news." But he still enjoys the First Amendment protections he's reluctant to extend to his opponents, even as he extols police brutality or encourages supporters to attack protesters.

That the worst speech needs the most defending isn't news to anyone here at Techdirt. This point has been made repeatedly. But every time something like what happened in Charlottesville happens, the point needs to be driven home again.

Some believe the curbing of speech would somehow prevent violence. But words and actions are two different things. We have plenty of laws in place to deal with assault and vehicular homicide. What we don't need is more laws regulating speech in response to criminal activity. Certainly some of the people making the nastiest statements are also perpetrators of violence. But laws that criminalize speech extend culpability from doing to simply thinking.

There's a huge gap between defending someone's right to speak and defending what they're saying. As some people need to be constantly reminded, free speech is not speech without consequences. Ignorant, nasty, brutish statements deserve the criticism they receive. What they shouldn't be met with is calls for the government to step in and tell everyone what sort of speech is permitted. Those protesting the statue's removal had every right to be heard, no matter how ridiculous their arguments and beliefs.

It also should be clear (but often isn't) that defending someone's First Amendment rights isn't the same thing as defending their actions. It's not even something as minimal as complicity. The ACLU stepping up to defend the white nationalist's right to assemble doesn't not make them an enabler of the violence that followed. That violence was the end result was possibly to be expected, but allowing the government to selectively revoke certain citizens' rights as a precaution isn't really the path we want to go down.

Finally, there's one more point to consider when calling for the curtailment of free speech for the "worst of the worst:" it is utterly ineffective, even if it "works." Here's Greenwald:

How can anyone believe that neo-Nazism or white supremacy will disappear in the U.S., or even be weakened, if it’s forcibly suppressed by the state? Is it not glaringly apparent that the exact opposite will happen: by turning them into free speech martyrs, you will do nothing but strengthen them and make them more sympathetic?

The last thing anyone needs is for the worst of worst to become cause celebres because of their odious viewpoints. No one should be in a hurry to make it more difficult to easily recognize small-minded, hateful people. Their ignorance should always be on display. Burying them just makes them more dangerous and more apt to resort to violent means to make their points.

Filed Under: charlottesville, civil liberties, civil rights, defending free speech, free speech, hate speech, violence
Companies: aclu

Florida City Ignores All Legal Precedent As It Attempts To Silence & Identify Mild Critic

from the that's-not-how-any-of-this-works dept

Florida. It's always Florida. Last time it was the city of Tamarac, Florida making bogus trademark claims to try to silence a blogger. And this time, it's the city of Coral Gables (basically a part of Miami). Apparently the powers that be in Coral Gables are not fans of free speech if it involves people disagreeing with their decisions. And thus, they're willing to send completely bogus threat letters to Facebook to silence anonymous critics, followed up by filing a lawsuit against Facebook to identify them.

I first came across this story thanks to Alfred Spellman, who pointed me to an article by Jessica Lipscomb about the city suing Facebook, and there have been similar stories in the Miami Herald as well. Reading those stories still left me scratching my head a bit, and part of the issue (again!) is Florida. So I've tracked down the full complaint and also emailed the city attorney filing the lawsuit with questions, as I discuss below.

But first, let's back up and explain what's happening. Recently, the city decided to hire private unarmed security guards, which has created some controversy, especially with the local police who aren't happy about these interlopers. So it shouldn't have been that surprising that someone started posting on Instagram and Facebook criticizing the city. From the Miami Herald:

In May, groups called Protect Coral Gables and "Coral Gables residents who care" posted a video on Facebook and Instagram that shows one girl attacking another, knocking her to the ground, then kicking her and stomping on her head. Three men in vests marked “security” watch but don’t intervene.

The posts said "$610,000 tax dollars wasted on security guards in Coral Gables" and described the video saying that the "security guards can only watch as a girl is beaten."

"Don’t let this happen in Coral Gables. Call your elected officials and tell them to step up to the plate and protect our families. Demand that they hire certified police officers."

The video, for what it's worth, was apparently from a few years ago in Seattle -- which is mentioned seven seconds into the video in question -- though the city of Coral Gables insists that the video is misleading and people are implying it's happening in Coral Gables. From the legal complaint, we can see what the city was mad about (though I don't understand why they're so mad about it, as it appears they're a bunch of thin skinned bullies who can't take even the slightest criticism).

On Instagram, they were upset about this ad along with the text above:

That seems like pretty normal "citizen speaking up on a matter of public interest" social media content. And, yes, it does seem noteworthy that the post appeared to have merely 59 views at the time the Coral Gables government decided to take action.

The Facebook complaint is even more ridiculous. They're upset about two Facebook groups. The first was called "Protect Coral Gables" and the second "Coral Gables Residents Who Care." And the main complaint is that the Facebook group uses the (trademarked) logo of Coral Gables. From the complaint:

I'm at a loss as to how Coral Gables attorneys could possibly think this is infringing. These people are commenting on Coral Gables policies and have created a group about Coral Gables, which is pretty obviously done by concerned citizens rather than the government. There's no likelihood of confusion here. And, importantly, they're not using the logo in commerce, so there's no trademark issue at all. Oh, and we should also point out that the Lanham Act forbids cities from trademarking their logos.

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it... [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof

So, yes, the USPTO may have registered Coral Gables' logo trademark, but it is obviously invalid under the law.

The whole thing appears to be that Coral Gables officials are upset that their own constituents are criticizing their decision and they decided to "do something about it."

I mean, it's fine to be unhappy about it, but it's another thing entirely to try to silence and then identify those critics. But, hey, Florida. And here's where things start getting stupid. It appears that the city started searching for any excuse to try to silence and/or identify the critics. In one report, they claimed it was "defamation" or "deception":

"It upset me when I saw it that someone … is trying to defame the city," said Commissioner Frank Quesada. "It’s meant to deceive, it’s meant to scare."

But, that's silly. There's no defamation. There's no deception. Furthermore, as the Supreme Court clearly states in the famous First Amendment case New York Times v. Sullivan, the government cannot sue for defamation:

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.

Now, that's coming from a Commissioner, not the city attorney, so you'd think that the city attorneys would educate Quesada. They did the opposite.

In one of the articles, Coral Gables' city attorney Craig Leen makes this ludicrous statement:

"They’re free to put any statement they want to make but what they can’t do is put a video of a terrible incident that did not happen in Coral Gables and make it seem like it happened in Coral Gables," Leen said.

Except... they didn't. First, the video identifies itself as happening in Seattle in the first seven seconds. Second, the exhibit in Leen's own lawsuit clearly says "Don't let this happen in Coral Gables" which pretty clearly states that the events in the video happened elsewhere. Here's yet another exhibit showing "don't let this happen in Coral Gables" appearing directly above the video:

But I'm getting ahead of myself. Before the city filed the lawsuit, deputy city attorney Miriam Ramos sent a cease and desist letter to both Instagram and Facebook (and, yes, Instagram is owned by Facebook), claiming that the social media posts violated the city's trademarks, even though they clearly do not as explained above. Not only did she send a cease and desist, she claimed that if they failed to comply, she would magically fine them $500 per day.

Instagram General Counsel,

It has come to the attention of the City of Coral Gables that an Instagram page/ad exists under the name "Protect Coral Gables." The page/ad contains an emblem that is a trademark owned by the City of Coral Gables (see attached as Exhibit A). The trademark is registered in the United States (Registration No. 4,307,912). Further, the page/ad contains content that is erroneous and misleading, including a video of an attack on a woman.

We, therefore, order that your company immediately cease and desist from allowing the use of our trademarked logo on the "Protect Coral Gables" Instagram page/ad and remove the erroneous and misleading content contained in the page/ad. Pursuant to Coral Gables Ordinance 2016-059, failure to comply with this letter will subject Instagram to a code enforcement citation carrying a fine of $500 per day of violation.

Sincerely,
Miriam S. Ramos
Deputy City Attorney and City Prosecutor

So... there are a whole boatload of problems with this cease and desist. First, as already explained, what was done by the people protesting the decision was clearly not use in commerce and similarly unlikely to confuse. And, the city can't trademark its logo. In short, it's not trademark infringement in any way, shape or form. Second, the last sentence of the first paragraph is painfully misleading, playing up the fact that the video shows "an attack on a woman" but leaving out all context and almost certainly implying that the video violates the company's terms of service (which it does not).

Finally, the whole $500/day fine thing. As we know, CDA 230 has made it quite clear that Instagram and Facebook can't be fined over a user's speech (which is likely why they try to pretend it's a trademark violation, which is exempted from CDA 230). But, what the hell is Ordinance 2016-59? Well, I'll tell you that the city doesn't make it easy to figure that out, but I finally tracked down the ordinance, which became Section 2-203 of the code of the city of Coral Gables, and it says:

(a) The city attorney is authorized to issue cease and desist letters for violation of the City Code, Zoning Code and any other applicable law where such violation causes harm to the city, its residents or its businesses.
(b) It shall be unlawful for any person or entity to disobey the demand made by the city attorney or his/her designee, on behalf of the City of Coral Gables, in a cease and desist letter.
(c) Failure to obey the demand made in a cease and desist letter shall result in the issuance of a code enforcement citation, punishable by a fine of $500.00 per day.

But, uh, what Facebook and Instagram did is not a violation of City Code or (especially) Zoning Code. It's not a violation of any "applicable law." This is just a city attorney trying to talk big, and even then can only threaten a $500 fine normally used for those with zoning violations -- targeting one of the largest companies in the world. Good luck with that.

Instagram replied to Ramos, noting that the user appeared to have removed the content already themselves, so there was no problem. Ramos responded, somewhat hilariously, saying that if the ad reappeared, she'd start fining them $500 per day. Can you say "prior restraint"? Perhaps they don't teach that where Ramos went to law school.

On behalf of the City of Coral Gables, the cease and desist letter remains in effect and if another ad is published using our trademark, Instagram will be fined $500 per day.

Please provide this email to your general counsel and ask them to respond to us.

Instagram then responded, finally pointing out that there was no trademark infringement.

Hi,

Thanks for your report. Based on the information you've provided, it is not clear that the content you've reported infringes your trademark rights. The reported party appears to be using your trademark to refer to or comment on your goods and services.

For this reason, it does not appear that the reported content is likely to confuse people as to source, sponsorship or affiliation, and we are unable to act on your report at this time.

Thanks,

Liam
Intellectual Property Operations
Instagram

Hats off to you, "Liam." Unfortunately, the enforcement folks at Instagram's parent company, Facebook, didn't bother to look at what was happening, and caved in immediately:

Hi,

Thanks for bringing this matter to our attention. We removed or disabled access to the content you reported for violating the Facebook Statement of Rights and Responsibilities. We understand this action to resolve your intellectual property issue.

Facebook: you got this one wrong. There's no violation there.

And, either way, what benefit did Facebook get for complying with Coral Gables' censorial bullying? It got dragged into court. Because after all this, the city filed a complaint for a "pure bill of discovery." You may recall the concept of Florida's "pure bill of discovery" as it played a prominent early role in the Prenda saga. It's a generally antiquated law to obtain discovery (which is legalese for "force you to hand over info"). Indeed, there's some argument that John Steele of Prenda moved from Illinois to Florida early on in Prenda's history in order to use Florida's pure bill of discovery to uncover the names of people he wanted to shake down. Courts eventually put a stop to it, but here the City of Coral Gables is trying to use it to identify anonymous critics.

The complaint repeats the misleading claim that the use of the logo is trademark infringement, as well as the false claim that the Instagram ad is "erroneous and misleading." It is neither. Hell, the city's cease-and-desist and complaint are both a hell of a lot more erroneous and misleading than anything in the Instagram ad. And, again, the language here hints at a possible defamation claim which is not allowed under the First Amendment, as made clear by NYT v. Sullivan. Do the city attorneys of Coral Gables not know this... or do they not care?

Then the complaint demands "any and all records identifying the name, address, telephone number of the entity and/or individual(s) responsible" for posting that content.

Let's be clear: this is complete unconstitutional bullshit. I've emailed city attorney Craig Leen as well as the outside lawyer who filed the complaint, Anna Marie Gamez, asking them to explain how any of this could possibly pass constitutional muster. The Supreme Court seriously frowns on this kind of thing. Beyond the NYT v. Sullivan mentioned above, in McIntyre v. Ohio Elections Commission (which involves a government body going after someone for handing out anonymous pamphlets concerning an issue of public concern), Justice Stevens wrote in the opinion:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

I emailed city attorney Craig Leen (as well as the city's outside attorney, Anna Marie Gomez of the law firm Holland & Knight). Just as I was finalizing this post, Leen responded to my emails insisting that the complaint has no First Amendment problems and that their trademark claims are legit:

I want to assure you that the City views the bill it filed as meritorious, and certainly not frivolous. The City also views its bill as consistent with the First Amendment and trademark law.

When asked how, Leen gave some boilerplate language about trademark:

The City’s trademark was used in the profile pictures as if Coral Gables was sponsoring the site. This does not fall under fair use. It is an attempt to appropriate Coral Gables’ mark to induce people to view the post and causes confusion as to whether this highly misleading post is being sponsored or endorsed by the City of Coral Gables. For example, if you look at Exhibit E to the Complaint, at the attachment to the cease and desist letter, it shows the word “Sponsored” right next to the City of Coral Gables mark. The City is seeking to protect its mark and has a right to do so.

Again, this is wrong. Even setting aside the fact that the Lanham Act forbids cities from trademarking their logos, the exhibit he mentions (Exhibit E) does not at all show the word "sponsored" next to the City of Coral Gables mark, and certainly not in a manner that has a likelihood to confuse. Remember, this is the Instagram post (shown above) that clearly shows that it's from a group called "Protect Coral Gables" and the text of the image and the text beneath the image make it blatantly obvious that this is someone protesting the City's actions, not coming from the city itself. The fact that it is a "sponsored" post is meaningless here. This is clearly people of Coral Gables using their right to petition the government.

And the city of Coral Gables is trying to stomp that out. This is very clear abuse of the First Amendment and Leen should be ashamed of trying to pretend otherwise.

It appears that the city of Coral Gables is quickly shooting to the top of the list of thuggish, censorial cities, whose officials can't handle even the slightest criticism of their decisions. You would hope that, at some point, someone explains to them the nature of the First Amendment as well as two of the most famous cases from the Supreme Court that clearly bar this action. And it doesn't matter at all how you feel about the initial action (the hiring of security guards). Indeed, as many would guess from how we cover police issues here, I tend to think hiring unarmed security guards is a much better solution than hiring more armed police officers. But how can a city and its leaders have such thin skins that they'd be willing to trample all over the First Amendment over a tiny bit of criticism seen by fewer than 60 people (including the city's own lawyers)?

Oh, and let us not forget that Florida's got a nice (relatively new) anti-SLAPP law that seems tailor made for this kind of thing, which might mean that Coral Gables taxpayers will be footing Facebook and Instagram's attorneys' fees, should they seek to use the law. If there was already concern about Coral Gables wasting money on security guards, I can't imagine that it will go over all that well that it's also wasting it on frivolous witch hunts for anonymous critics online.

Filed Under: anna marie gamez, anti-slapp, coral gables, craig leen, criticism, defamation, first amendment, florida, free speech, public participation, slapp, trademark