UK Now Calling Its 'Online Harms Bill' The 'Online Safety Bill' But A Simple Name Change Won't Fix Its Myriad Problems

from the this-is-not-how-this-should-work dept

We've talked a bit about the UK's long-running process to basically blame internet companies for all of society's ills. What was originally called the "online harms" bill has now officially morphed into the Online Safety Bill, which was recently released in draft form.

Despite the UK government insisting that it spent the past few years talking to various stakeholders, the final bill is a disaster for the open internet. Heather Burns, from the UK's Open Rights Group (loosely the UK's version of the EFF), has a short thread about the bill, explaining why it's so problematic. Here's the key bit:

You're going to read a lot today about the government's plans for the Online Safety Bill on #onlineharms, a regulatory process which has eaten up much of the past two years of my professional work. I suppose if I had a hot take to offer after two years, it's this:

1. If you see the bill being presented as being about "social media" "tech giants" "big tech" etc, that's bullshit. It impacts *all services of all sizes, based in the UK or not. Even yours.* Bonus: take a drink every time a journo or MP says the law is about reining in Facebook.
2. If you see the Bill being presented as being about children's safety, that's bullshit. It's about government compelling private companies to police the legal speech and behaviour of everyone who says or does anything online. Children are being exploited here as the excuse.
3. So as you read the Bill, consider how altruistic any government initiative must be if it requires two layers of A/B tested messaging disinformation.

A week earlier Burns, who's been deeply engaged in the process in the UK wrote up a long blog post explaining all the problems with the fundamental approach embraced in the bill: it's basically outsourcing all of the roles of the government to internet companies, and then threatening to punish them if they get it wrong. Here's just one important bit:

The first and most immediate impact of the imposition of senior management liability will be a chilling effect on free speech. This is always a consequence of content moderation laws which are overly prescriptive and rigid, or conversely, overly vague and sweeping.

When everything falls into a legally ambiguous middle ground, but the law says that legally ambiguous content must be dealt with, then service providers find themselves backed into a corner. What they do in response is take down vast swathes of user-generated content, the majority of which is perfectly legal and perhaps subjectively harmful, rather than run the risk of getting it wrong.

This phenomenon, known as “collateral censorship” – with your content being the collateral – has an immediate effect on the right to freedom of expression.

Now add the risk of management liability to the mix, and the notion that tech sector workers might face personal sanctions and criminal charges for getting it wrong, and you create an environment where collateral censorship, and the systematic takedowns of any content which might cause someone to feel subjectively offended, becomes a tool for personal as well as professional survival.

In response to this chilling effect, anyone who is creating any kind of public-facing content whatsoever – be that a social media update, a video, or a blog post – will feel the need to self-censor their personal opinions, and their legal speech, rather than face the risk of their content being taken down by a senior manager who does not want to get arrested for violating a “duty of care”.

The general summary for tons of experts is that this bill is a dumpster fire of epic proportions. Big Brother Watch notes that this would introduce "state-backed censorship and monitoring on a scale *never seen before* in a liberal democracy." The scariest part is that it will require companies to remove lawful speech. The bill refers to it as "lawful but still harmful" (which some have taken to calling "lawful but awful" speech). But as noted above, that really creates tremendous incentives for excessive censorship and suppression of all sorts of speech to avoid falling on the wrong line.

Indeed, this is the very model used by the Great Firewall of China. For years, rather than instructing internet companies what to block with the Great Firewall, internet companies would often just get vague messages about what kinds of content the government was "concerned" about, along with threats that if the internet companies didn't magically block all of that content, they (and their executives) would face liability. The end result is clearly significant over-blocking. If you only get punished for under-blocking, the natural result is going to be over-blocking.

Among the many other problems with this, the UK's approach will only lead the Chinese to insist that this shows their Great Firewall approach is the only proper way to regulate the internet. They've certainly done that before.

It really is quite incredible how closely the bill mimics the Great Firewall approach, but with UK regulators OFCOM stepping in for the role of the Chinese government:

There are a few attempts in the draft bill to put in place language that looks like they're supportive of free speech, but most of these are purely fig leaves -- the kind of thing they can point to in order to say "see, we support free speech, no censorship here, no siree" but which fail to take into account how these will work in practice.

Specifically, there's a section saying that websites (and executives), that will now face liability if they leave up too much "lawful but harmful" content, must make sure not to take down "democratically important" content. What does that mean? And who decides? Dunno. There's also a weird carveout for "journalists" but again, that's problematic, when you realize that merely the act of defining who is and who is not a journalism is a big free speech issue. And the bill does note that "citizen journalists will have the same protections as professional journalists." Does... that mean every UK citizen has to declare themselves a "citizen journalist" now? How does that even work?

The whole thing is not just a complete disaster, it's a complete disaster that tons of smart people have been warning the UK government about for the past two years without getting anywhere at all. I'm sure we'll have a lot more to say about it in the near future, but for now it really looks like the UK approach to "online harms"... er... "online safety" is to replicate the Chinese Great Firewall. And that's quite stunning.

Filed Under: censorship, china, free speech, intermediary liability, legal but harmful, online harms, online safety, uk

Michigan Legislator With No Understanding Of The 1st Amendment Wants To Fine Fact Checkers For Pointing Out His Lies

from the incredible dept

Michigan State Rep. Matt Maddock has quite a reputation for lying:

Michigan state Rep. Matt Maddock, who has repeatedly spread lies about election fraud and falsely said COVID-19 “is less lethal than the flu,” wants to make it harder for fact-checkers to challenge unsubstantiated claims by politicians.

That's really only the start of a much longer list of problematic statements by the elected official:

Maddock made several attempts to overturn the election. In late December, he and Daire Rendon, R-Lake City, joined a federal lawsuit filed by Trump supporters to challenge the results of the election. The suit asked a judge to allow lawmakers to certify states' election results, a move that would enable the Republican-led Michigan Legislature to reject Biden's victory. But a judge turned down the suit, calling their arguments "flat-out wrong" and "a fundamental and obvious misreading of the Constitution."

It appears that Maddock's "fundamental and obvious misreading of the Constitution" extends to the 1st Amendment as well. He's now introduced an astoundingly unconstitutional bill that seeks to "register" and then fine fact checkers who fact check his lies. You can read his Fact Checker Registration Act (which somehow has eight other unserious co-sponsors) and just marvel at the blatant unconstitutionality of it all. I mean beyond all of the big problems with it, there's the fact that it literally calls out the Poynter Institute's International Fact-Checking Network as requiring registration into his scheme.

Under the bill, any "fact checker" has to put up a $1 million bond, and then any "affected party" can sue any fact checker for the money put up in the bond, if they can show the fact checker engaged in "wrongful conduct that is a violation of the laws of this state."

What does that even mean? Well, Maddock made the unconstitutional intent of his bill abundantly clear in a Facebook post about it:

Social Media companies deplatform people, politicians, and businesses on the basis of “Fact Checkers” who relish their role punishing those whom they deem 'false’. Many believe this enormous economic and social power is being abused. Who are these Fact Checkers? We’re going to find out. My legislation will put Fact Checkers on notice: don't be wrong, don't be sloppy, and you better be right.

I mean, if we applied the same rules to him, he'd be paying out a ton of money, since he's so often wrong about things. But, also this is pretty obviously unconstitutional in multiple ways. Forcing fact checkers to register with the state is already highly questionable because the setup is designed to intimidate fact checking, which is a core form of protected speech, and some of the most important kinds of speech protected by the 1st Amendment. If, as is obviously the fact, the registration (and bond) requirement is designed to intimidate fact checkers, then it's clearly unconstitutional.

Second, courts have ruled over and over again that merely being "sloppy" and even making mistakes is not grounds for the speech to be deemed a violation of the law. This is why cases like NY Times v. Sullivan and United States v. Alvarez are so important. They recognize that the 1st Amendment means that the government can't willy nilly try to shut down speech, even if it's false.

Finally, the structure of the bill is just... weird. It says that a fact checking organization can get fined for "wrongful conduct that is a violation of the laws of this state." And while he claims that this includes being "sloppy," any such law that says being sloppy with your fact check is illegal in Michigan would, separately, violate the 1st Amendment.

This whole thing is just more victim playing by the modern GOP, who seems to feel that anyone calling them on their bullshit, disinformation, and lies, is somehow violating their rights, while having no qualms at all about stamping out the rights of those who actually tell the truth.

Of course, after lots of people started pointing out what an attack on free speech and a free press this bill was, Maddock tried to defend the bill, but only ended up producing a word salad of nonsense.

“This isn’t about journalists or free speech,” he said. “It’s about the fact checkers who have been injected into our First Amendment right to be wrong if we want to. If a fact-check entity is bankrupting businesses and cancelling people with lies, they should be held accountable. If they have high standards and are doing good fact checking, they have nothing to worry about.”

Fact checkers are journalists, dude. And what does "injected into our First Amendment right to be wrong" mean here -- especially given that he's trying to fine them if they're wrong?

Elect better people, Michigan voters.

Filed Under: 1st amendment, fact checking, fines, free speech, matt maddock, michigan, registration

Texas Attorney General Unblocks Twitter Users Who Sued Him; Still Blocking Others

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

It seems by now that public officials should know that they cannot block critics on social media if they are using their social media accounts for official business. This was thoroughly established the Knight v. Trump case, where the court made it clear that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. Yet over and over again elected officials seem to ignore this.

Alexandria Ocasio-Cortez was sued over this, as was Marjorie Taylor Greene (both of them eventually settled and agreed to unblock people).

Last month, controversy prone Texas Attorney General Ken Paxton was sued over the same thing (again by the Knight First Amendment Institute). As the lawsuit notes, many of the people Paxton blocked found themselves in that situation after they replied to Paxton by reminding him of the still ongoing criminal charges he's been facing his entire time in office. Basically, if you remind Paxton of the fact that he's facing criminal charges, you had a decent shot at getting blocked.

However, last week, Paxton unblocked the 9 users who sued him, perhaps realizing he was clearly going to lose this case. Of course, it looks like he only removed the blocks on those 9 individuals and kept up the blocks on others. Law professor Steve Vladeck (who is at the University of Texas Law School) noted that he's still blocked, even if the plaintiffs in the lawsuit are not:

Vladeck is (of course) correct. The whole point of this is that public officials cannot block anyone from their official accounts like this. If he's just unblocked the people who sued them, that means anyone blocked will have to go through the costly and time consuming process of suing to get unblocked, and that's not how it's supposed to work either.

It seems pretty clear that the lawyers in the case recognize that Paxton isn't really doing what he is required to do under the 1st Amendment:

“We’re pleased that Attorney General Paxton has agreed to unblock our plaintiffs in this lawsuit and are hopeful that he will do the same for anyone else he has blocked from his Twitter account simply because he doesn’t like what they have to say,” said Katie Fallow, a senior staff attorney at the Knight First Amendment Institute.

Anyone taking bets on how many of those other people are going to need to sue first?

Filed Under: 1st amendment, blocking, ken paxton, texas
Companies: twitter

Baltimore Prosecutor Asks FCC To Go After Local News Broadcasters She Doesn't Like

from the looking-real-progressive-there,-Marilyn dept

It's not often you see a politician ask the FCC to step in to punish a news station. And for good reason: the First Amendment. Politicians are welcome to fight speech they don't like with more speech, but they shouldn't be calling for a federal government investigation of a TV station just because they don't like the slant of the stories about them.

Baltimore (MD) City State's Attorney Marilyn Mosby thinks a local Fox affiliate is unfairly portraying her and her official doings. Rather than just accept that this is part of being in the business of politics, Mosby is asking the FCC to ask Fox to stop being Fox. Here's the angry letter [PDF] her office wrote -- one she boosted into Streisandia by airing her particular grievance on Twitter. (h/t Adam Steinbaugh)

This is a formal complaint requesting an investigation into the broadcasting practices and media content distributed by FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network, specifically the content distributed to the public about the Baltimore City State’s Attorney’s Office (SAO), a government entity, and its lead prosecutor, State’s Attorney Marilyn Mosby that upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous.

Well, that's Fox for you. And if the FCC hasn't done anything yet to go after broadcasters who "intentionally distort the news" -- something forbidden by FCC rules -- there's a good chance it won't be doing anything about this complaint either. And a lot of "intentional distortion" is often in the eye of the beholder. Mosby is definitely aggrieved, but being mad about stuff isn't the same as being right about stuff, especially when the Constitution is on the line.

In my capacity at the States Attorney’s Office, I have noted that the news coverage of the WBFF persistently follows a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts.

Whew. Sounds just like any news outlet that has hosts and commentators with axes to grind. Nothing unusual here other than a government figure demanding the federal government start targeting protected speech. And speaking of conspiracy theories, Mosby has one of her own:

Most disturbingly, there appears to be an intentional crusade against State’s Attorney Mosby, which given today’s politically charged and divisive environment, is extremely dangerous.

Mosby also has problems with how often she's being covered by the local Fox affiliate, which is another thing you don't see too many politicians complaining about: too much press.

In 2020, there were 248 stories by the WBFF solely about SA Mosby. In comparison, other local news networks ran significantly fewer stories. When assessed over the same period in 2020, Baltimore City stations did the following: WBAL – 26 stories; WJZ – 46; and WMAR – 10. So far in 2021, the WBFF has run 141 slanted stories.

Looks like a really good use of Baltimore tax dollars: having staffers watch TV to find things for Mosby to complain to the FCC about.

Mosby claims this heated, frequent coverage of her endangers her personally. According to Mosby, the slanted broadcasting -- combined with the station's one-time broadcast of her home address -- has resulted in her receiving multiple death threats and fearing for her safety. How much of this would have happened without WBFF's allegedly unfair coverage is unknown.

The letter then lists a sampling of the "slanted" coverage that Mosby finds so disturbing her office is asking for FCC intervention. And it's a pretty bland list.

Rollout of new policies by Marilyn Mosby needed more collaboration, experts say

Baltimore City State’s Attorney Avoids Oversight

Role Top Prosecutor Plays in Baltimore Violence

Quotes from these offending pieces are also attached and they're equally inoffensive:

It’s been about three weeks since City State’s Attorney Marilyn Mosby doubled down on her plan to permanently stop prosecuting what she calls “low-level” offenses.

Findings from an Operation: Crime & Justice investigation show City and State watchdog agencies don't audit City State’s Attorney Marilyn Mosby’s Office.

Since the riots in 2015, Baltimore City has seen hundreds of lives lost. Sean Kennedy who is a visiting fellow at the Maryland Public Policy Institute tells Fox45 News, “The State’s Attorney is a crucial player in curbing crime in any jurisdiction.”

Somehow this equates to an assault on the State's Attorney sensibilities and an attack on the right of the people to be able to access "unbiased" news. Somehow this innocuous batch of pretty mild criticism is something that "incites racists to act upon their animus for the State's Attorney."

Mosby wraps the complaint with a paragraph that is inconsistent with everything surrounding it:

To be clear, the State’s Attorney’s Office is not above receiving criticism. We welcome being held accountable, and we support First Amendment freedom of speech. However, what we find troubling, abhorrent, and outright dangerous, is that the distinctly relentless slanted broadcast news campaign, against the Baltimore City State’s Attorney’s Office and its lead prosecutor, has the stench of racism.

The Attorney's Office will only accept criticism that's "unslanted." It will only be held accountable by journalists it considers to be fair. And it fully supports the First Amendment rights of everyone but the broadcasters at WBFF. And, I hate to say it, commentary and opinion with a "stench of racism" is still protected speech.

If Mosby really respects the First Amendment and welcomes criticism, she should simply post this letter -- minus all the stuff requesting action from the FCC -- and let residents draw their own conclusions about WBFF and its coverage of local politics. A government official asking a government agency to open an investigation into a journalistic entity has the stench of censorship.

Filed Under: 1st amendment, baltimore, fcc, free press, free speech, marily mosby, retaliation
Companies: wbff

Trump Shows Why He Doesn't Need Twitter Or Facebook, As He Launches His Own Twitter-Like Microblog

from the you-know-what-they-say-about-blog-sizes dept

In a few hours, the Oversight Board will announce its decision regarding Facebook's decision to ban Donald Trump from its platform. As we noted back when Trump was removed from Twitter and Facebook, Trump does not lack in ways to be heard. Indeed, we suggested that he could very, very easily set up his own website with tweet-like statements, and it was likely that those would be shared widely.

And... as we wait for the Oversight Board ruling, it looks like Trump has done exactly that. He's launched a new blog site that has short Tweet-style posts, and includes simple sharing buttons so people can post the text to both Twitter and Facebook:

It's not hard to see how that... looks quite like his Twitter feed. For what it's worth, a friend notes that while you can "like" Trump's new missives, you cannot unlike them once you've done so (this is a metaphor for something, I'm sure).

The messages on the site go back to March 24, even though the site was just launched today, so it makes you wonder if this is the infamous rumored result of Trump writing down "insults and observations" that he would have said on Twitter if he still had an account.

In a video he currently has posted to the top of the site, announcing the site, Trump says that it will be "a beacon of freedom" and "a place to speak freely and safely" (whatever that means). It's unclear if they just mean for Trump himself, or if this is the rumored first pass of his own social network.

Either way, if he doesn't let anyone else post to the site, under his own definition of censorship, wouldn't that mean that he's censoring everyone but himself? Or, if he does allow others to post, it will be absolutely fascinating to see what content moderation policies he ends up putting in place. The existing terms of service on the site makes it clear that he wants to be able to moderate everything:

Although Save America has no obligation to do so, it reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Sites at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense. Any use of the Interactive Areas or other portions of the Sites in violation of the foregoing violates these Terms of Service and may result in, among other things, termination, or suspension of your rights to use the Interactive Areas and/or the Sites.

It also notes:

Save America takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Save America liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, profanity or other objectionable content you may encounter.... As a provider of interactive services, Save America is not liable for any statements, representations, or User Content provided by its users in any Interactive Area.

The site also has a long list of content you're not allowed to publish -- much of it that is perfectly legal under the 1st Amendment (even as Trump's friends have been pushing rules that say only unprotected speech can be taken down):

The Sites may include interactive areas or services ("Interactive Areas"), such as forums, blogs, chat rooms or message boards, or other areas or services in which you or other users may create, post, share or store content, messages, materials, data, information, text, graphics, audio, video, or other items or materials on the Sites ("User Content"). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you agree not to post, upload, transmit, distribute, store, create, or otherwise publish to or through the Sites any of the following:

• User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, discriminatory, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, deceptive or misleading;
• User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
• User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
• User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
• Unsolicited promotions, advertising, or solicitations;
• Private or personally identifying information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
• Viruses, corrupted data or other harmful, disruptive or destructive files; and
• User Content which violates the terms of any Save America guidelines, policies or rules posted on the Site or otherwise provided to you; and
• User Content that, in the sole judgment of Save America, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Sites, or which may expose Save America or its users to any harm or liability of any type.

On the whole, though, this is a good thing. I'm glad that Trump has set up his own site (no matter what happens with Facebook). More people should do that themselves as well, and recognize that then you get to set your own moderation rules and your own system, and don't have to deal with not violating someone else's rules. But it also shows how Facebook and Twitter removing him wasn't censorship -- it was just them saying he needs to find somewhere else to speak.

Filed Under: blog, blogging, content moderation, donald trump, free speech

Disney Got Itself A 'If You Own A Themepark...' Carveout From Florida's Blatantly Unconstitutional Social Media Moderation Bill

from the welcome-to-GoogleLand-and-FacebookWorld dept

Earlier this year, we noted that a wide variety of states (mostly those controlled by angry, ignorant Republicans) were looking to pass blatantly unconstitutional bills that sought to force social media companies to host all speech and not moderate. As we noted in that article, Florida seemed to be leading the way, and now both houses of the Florida legislature have passed the bill that is blatantly unconstitutional, and will only serve to waste a large amount of taxpayer dollars to have this law thrown out in court.

The bill, like so many other such state bills, would violate the 1st Amendment by compelling websites to host speech they have no desire to host. It's not even worth going through the bill bit by bit to explain its many different unconstitutional parts, but like so many of these bills, it tries to say that social media websites (of a certain size) will be greatly restricted in any effort to moderate their website to make it safer. There is no way this is even remotely constitutional.

But, it gets worse. Seeing as this is Florida, which (obviously) is a place where Disney has some clout -- and Disney has famously powerful lobbyists all over the damn place -- it appears that Disney made sure the Florida legislature gave them a carveout. Florida Senator Ray Rodriques introduced an amendment to the bill, which got included in the final vote. The original bill said that this would apply to any website with 100 million monthly individual users globally. The Rodriques amendment includes this exemption:

The term does not include any information service, system, Internet search engine, or access software provider operated by a company that owns and operates a theme park or entertainment complex as defined in 509.013, F.S.

In other words, Disney (which owns a ton of companies with large internet presences) will be entirely exempt. Ditto for Comcast (Universal studios) and a few others. For what it's worth, the backers of this amendment claimed it was needed so that Disney could moderate reviews on its Disney Plus streaming service... but that makes no sense at all.

First, Disney Plus has nothing to do with theme parks. If the goal is to allow moderation of reviews on streaming platforms, then shouldn't the carveout be... for review sections on streaming platforms? Second, just the fact that the original bill would have created problems for the famously family friendly Disney to moderate reviews shows the problem with the entire bill. The whole point of 230 and content moderation is to allow websites to moderate in a way they see fit for their own community -- so sites like Disney can moderate to keep a "family friendly" experience, and others can moderate to match their own community standards.

Of course, that also means that if this bill is somehow found to be constitutional (and it will not be...), it will not be long until you start seeing 25 acres (the minimum amount necessary) somewhere in Florida suddenly under construction for the opening of GoogleLand, FacebookWorld or TwitterVillage. I, for one, can't wait to ride the AlgoSwings in GoogleLand and the Infinite Scroll Coaster at Twitter Village.

Filed Under: 1st amendment, compelled speech, content moderation, florida, free speech, social media, theme parks
Companies: disney

Joe Biden Yells A Dumb Anti-Free Speech Trope In An Uncrowded Congress

from the don't-support-censorship-joe dept

Joe Biden has never been a particularly big free speech supporter. For years, as a Senator, he consistently sided with the entertainment industry in their never-ending quest to have the government help attack free speech on the internet via aggressive and oppressive copyright laws. Throughout his campaign he railed against protected speech online that he disliked. And last night, during his first full address to Congress, he trotted out the very dangerous "fire in a crowded theater" trope:

He did it in a very dumb way too. In talking about his push for gun control, he pushed back against the idea that things like background checks and certain limitations on firearms would violate the 2nd Amendment... using the trope about the 1st Amendment:

This shouldn't be a red or blue issue. And no amendment to the Constitution is absolute. You can't yell fire in a crowded theater.

This is unfortunately not the first time Biden has used that line in his push for gun control.

For a decade now, we've been explaining why this is not a good thing to say, but apparently people need a big refresher. So, here we go.

First off, the "shouting fire" line was first said by Supreme Court Justice Oliver Wendell Holmes in Schenk v. United States. It was not a precedential statement, but rather what's known as dicta, basically a judicial aside. Schenk was not about fires in theaters. It was about jailing someone who was morally opposed to war for handing out anti-draft brochures during World War I. If anything the statement should be seen as an example of why and how we need to better protect free speech rights, because when we don't, and we let people aimlessly say things like "you can't falsely shout fire in a crowded theater" it leads to jailing people for protesting war -- something today we recognize as quintessential protected speech. If people knew the actual history behind the statement, it's unlikely they'd use it.

It never had any precedential value as dicta, but even if it did, the Schenk case is no longer good law. In fact, just months later, Oliver Wendell Holmes basically changed his mind. A few years back, Thomas Healy wrote an entire book about how a bunch of his free speech supporting friends more or less convinced him that he was very, very wrong in Schenk (and a couple of other similar cases), so in the very next term, Holmes suddenly started crafting our modern concepts of 1st Amendment law, in which most speech is absolutely protected. Initially in a set of dissenting opinions (in which his colleagues on the bench continued with the original line Holmes created), Holmes realized that he was totally wrong in Schenk and began saying things like:

I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Decades later, the ruling in Brandenburg v. Ohio effectively overruled Schenk, and began to establish the extremely limited and narrowly defined exceptions to the 1st Amendment.

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Since then a very small number of exceptions have been determined by the courts, but they are very, very, limited. And while someone could craft a scenario in which falsely yelling fire in a crowded theater could potentially fall into one of those buckets, it is extremely unlikely and would be extremely context dependent. In general, saying "you can't yell fire in a crowded theater" is false.

Almost universally, any time someone uses that line, they are endorsing unconstitutional suppression of speech, and trying to pretend it might be constitutional because "not all speech is constitutional." As Ken White rightly notes, that's what makes the use of this phrase so pernicious:

It's an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it's null-content, because all it says is some speech can be banned — which... is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

[....]

The observation "not all speech is protected" adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

In other words, the main function of using the "fire in a crowded theater" line, including in Biden's speech last night, is to say "I'm not going to explain to you why what I want to do is Constitutional, because I can just say the Constitution doesn't limit everything that I'd want to do." It's not only a meaningless statement in that it avoids the important heavy lifting of explaining why what you want to do isn't unconstitutional, but it brushes that very issue under the rug and says "let's not explore the issue of Constitutionality, because we can ignore it."

And doing that while at the very same time effectively defending the jailing of someone for protesting war is shameful and certainly un-Presidential.

For what it's worth, it appears that the "fire in a crowded theater" line was a stupid improvisation from Biden. It did not appear in the transcript the White House released prior to the speech:

One hopes that someone in the administration who understands the history and problems with that line will tell him to stop using it because it's extremely problematic, not just in the context of the 2nd Amendment, but very much so in the context of the 1st.

Anyway... if you care about the 1st Amendment and have feelings about this line, have we got a t-shirt (and other gear) for you:

Filed Under: 1st amendment, 2nd amendment, fire, fire in a crowded theater, joe biden

Senator Marco Rubio: Speech I Disagree With Is Pollution

from the try-that-again-senator dept

Senator Marco Rubio keeps trying to act Trump-like, but he just can't pull it off. He actually knows what he's saying is bullshit and unlike some other politicians, it's pretty obvious when Rubio is play-acting populist nonsense, rather than having any real conviction behind it. His latest is a NY Post opinion piece in which he takes on the new favorite punching bag of Republicans-who-have-no-principles-left: what is stupidly being referred to as "woke" corporations.. This is, of course, somewhat hilarious for anyone who followed decades of Republican politics in which over and over the politicians insisted that companies could do no wrong. But now that some companies are pushing back on Republican-inspired nonsense, suddenly they have to be labeled as "woke" and punished.

I won't go through the entire op-ed, but I will just pull out a quote towards the end that sums up how ridiculous and authoritarian this kind of nonsense truly is. In it, Rubio basically says that political views from companies he disagrees with are on the same level as pollution.

No policymaker would allow a company to dump toxic waste into a river upstream of a thriving town he is charged with governing. Yet corporate America eagerly dumps woke, toxic nonsense into our culture, and it’s only gotten more destructive with time. These campaigns will be met with the same strength that any other polluter should expect.

Our nation needs a thriving private economy. And patriotic business leadership has historically underwritten the American Dream. But lawmakers who have been asleep at the wheel for too long, especially within my own party, need to wake up. America’s laws should keep our nation’s corporations firmly ordered to our national common good.

Got that? Political views that go against Rubio are "toxic waste" and therefore must be regulated. Of course, corporations that have views that Rubio agrees with are somehow all about fresh air and freedom.

This is nothing less than blatant authoritarianism -- threatening companies for taking such crazy political stands as "Americans should be able to vote" and "we'd prefer not to support people who wish to overthrow elections." Rubio knows all of this. He's not that stupid. But he seems to think he has to play up this nonsense if he wants to win elections these days. And, thus the real issue here is not "woke" corporations. It's authoritarian attacks on free speech like Rubio's.

Filed Under: free speech, marc rubio, pollution, toxic waste, woke corporations

Malaysian Government Claims Insulting The Queen With A Spotify Playlist Is A Threat To National Security

from the to-be-fair,-your-highness,-it-does-have-some-absolute-bangers dept

The government of Malaysia has never been shy about censoring uppity citizens for doing things like, say, exposing massive government corruption. But it also has some royalty to shield from the content created by disgruntled citizens. That's why it recently welcomed a "fake news" law into the fold, giving the government (and the royalty it ultimately serves) yet another censorial weapon to deploy.

A local artist is the latest under the jackboot, accused of making Queen Tunku Azizah Aminah Maimunah feel bad by compiling a [checks report] Spotify playlist.

Malaysian police arrested an artist on Friday for allegedly insulting the queen by posting a satirical playlist online.

The playlist riffed off a recent controversy over the royal family and coronavirus vaccines.

The artist was detained for uploading a playlist featuring a portrait of the queen and songs that included the word "jealously," senior police official Huzir Mohamed said in a statement.

Fahmi Reza actually had to take his seditious business to Apple after Spotify kept taking down his playlist. It's still up at Apple Music for the moment (archived here) and it contains plenty of songs containing variations of the word "jealous."

Yeah, it's kind of just one joke, really. But it's obviously an effective one. The playlist turns the Queen's dismissive response to concerned subjugates against her. According to local reports, the Queen secured COVID vaccines for herself and her family through some powerful United Arab Emirates connections. When residents complained, the Queen pithily asked them if they were "jealous."

So, obviously a deserving target of criticism. But when the most deserving target has all the power, things tend to turn out badly for those doing the criticizing. Somehow, this jealousy-focused playlist threatens the security of the Malaysian people.

Fahmi was being investigated for breaking Malaysia's sedition and communications laws. He faces up to three years if convicted under the act, Huzir said.

"Tough action will be taken without any compromise against anyone who intentionally threatens public security," the police official added.

Three years for a one-joke playlist. And it makes the point with all the subtlety a 101-song playlist composed with the assistance of a single search term can. But equally unsubtle is the government's response. Insulting the royal family may be bad form but it shouldn't be illegal. And this definitely doesn't threaten the security of the nation. It only highlights the insecurity of the family sitting at the top of the country's org chart.

Filed Under: fahma reza, free speech, insults, malaysia, playlist, queen, sedition, tunku azizah aminah maimunah
Companies: apple, spotify