The Other George Floyd Story: How Media Freedom Led To Conviction In His Killer's Trial

from the freedom-helps dept

When 17-year-old Darnella Frazier started recording video of Minneapolis policeman Derek Chauvin murdering George Floyd, she initiated a series of historic events that led to Chauvin’s conviction.

But for all the discussion of technology following her actions – how cellphones enable video recording of police abuse and how social media encourages instantaneous mass distribution – the key factor in George Floyd’s name becoming globally famous may not be Frazier’s cellphone. It may not even be social media.

It was the culture and tradition of U.S. civil liberties and media freedom that played an essential role in protecting Frazier’s ability to record and retain possession of the video, and the capability of commercial corporations to publish it.

Had the same events transpired in China, Saudi Arabia, Russia, Singapore or elsewhere, nobody might ever have learned of Floyd’s fate.

The constitutional protections enjoyed by U.S. citizens empower and encourage everyday Americans to discover, record, expose and distribute evidence of governmental malfeasance. This freedom to publicize crimes committed by state actors creates the possibility of improving policing and making the administration of justice more sensitive, effective and responsive.

But it also threatens to undermine state authority, which is why so many U.S. politicians remain wary of such freedoms.

To understand how the United States developed this unconstrained news culture, you need to return to Minneapolis, to a moment one century ago, when a newspaper exposed police corruption and provided a key turning point in protecting the American public’s right to expose governmental crimes.

Press abuse vs. press limits

Jay Near always knew there were bad cops in Minnesota.

The publisher wrote about them in The Saturday Press, his Minneapolis newspaper. But Near called the cops “gangsters,” and he railed against what he claimed was a Jewish cabal controlling Minneapolis. Jay Near was a racist crank who published baseless conspiracy theories.

Today, Near is remembered – if at all – for his legendary Supreme Court victory in the 1931 U.S. Supreme Court decision known as Near v. Minnesota.

In 1927, Near and his business partner were prevented from publishing because The Saturday Press was deemed in violation of Minnesota’s “Public Nuisance Law.” That law outlawed publishing or circulating “obscene, lewd, and lascivious” or “malicious, scandalous and defamatory” materials.

Near sued to lift the prohibition, and his case made it to the Supreme Court, where his publication rights were ultimately vindicated. Near v. Minnesota opened up the modern version of press freedom we recognize today. Calling the Minnesota Public Nuisance Law “the essence of censorship,” a five-justice majority struck it down.

Essentially, the high court ruled that the U.S. Constitution allowed the abuse of press freedom in order to protect the most vibrant and robust public discussion possible. The Court had no illusions – the judges were well aware The Saturday Press published inflammatory misinformation. But in assessing the costs of censorship versus the benefits of liberty, the majority sided with the racist crank against the state of Minnesota.

Making the connection

The expansive media freedoms originating in the First Amendment, and later enshrined in Supreme Court decisions like Near v. Minnesota, would continue into the internet age with Section 230 of the Communications Decency Act. That’s the law that allows people to post freely on internet sites while protecting the internet companies from legal jeopardy caused by those materials.

So, for example, defamatory accusations, negligent misrepresentation, intentional nuisance, dangerous misinformation and even content intended to incite emotional distress can be posted without Facebook, Twitter, Instagram or other companies being sued or held civilly liable.

For better or worse, Section 230 establishes media freedom across the internet in the U.S. And it is this law, built on the traditions of media freedom, that allowed Darnella Frazier – and all citizens who follow in her footsteps – to stand up to the government in ways previously unimaginable.

But some stand ready to abandon these long-established legal and cultural protections.

Had Minnesota’s Public Nuisance Law survived Near’s challenge, it very well might have prevented publication of Frazier’s video. Those images could easily have been deemed “obscene,” or a “malicious” or “scandalous” incitement to violence.

But U.S. states can’t outlaw media organizations as “public nuisances.” Yet tensions over media freedom now exist that have the potential to lead to limits on the public’s ability to record and distribute police crimes.

Joe Biden and Donald Trump don’t agree on much, but one idea they have both publicly endorsed is eliminating Section 230 of the Communications Decency Act of 1996.

Critics who want to get rid of Section 230 regularly blame it for the plethora of “fake news,” misinformation, and hate speech that infects our web and social media. Because Twitter, Facebook, TikTok and others can’t be held liable for users’ content, the companies have felt little pressure, until recently, to moderate the blizzard of material they publish every second.

The cost of limiting the press

But media freedom is always a double-edged sword. Without Section 230 protection, social media companies would likely behave cautiously to minimize even the hint of legal jeopardy. Frazier’s video, in such a world, might be deemed too risky to distribute.

The immunity provided by Section 230 encourages YouTube, Facebook, Twitter and others, to stimulate users to post pretty much any news, information or video their users deem newsworthy or interesting.

The repeal of Section 230 could result in a system in which inflammatory or provocative news or images that might outrage or incite people could be deemed too socially destructive or disturbing of the peace by internet companies. And this could include images and video such as the murder of George Floyd.

The media freedom secured by Jay Near when he sought to expose police corruption in Minneapolis eventually assured the conviction of a criminal Minneapolis policeman.

The idea that U.S. citizens can report, publish, print and disseminate information that might be terribly damaging to authority is a radical one. Even within the United States, this freedom is often considered too expansive. In Oklahoma, for example, a new bill criminalizing the filming of police officers recently passed both houses of the state legislature, and elsewhere the rights of citizens and journalists to record police behavior occurring in public are regularly violated.

The direct line from Minneapolis in the 1920s to Minneapolis in the 2020s is the notion that protecting people’s rights promises to foster an active, aware and engaged citizenry – and that violating those rights by repressing or censoring information is deeply anti-American.

Michael J. Socolow, Associate Professor, Communication and Journalism, University of Maine. This article is republished from The Conversation under a Creative Commons license. Read the original article.

Filed Under: 1st amendment, free speech, george floyd, media freedom, minnesota

Morrissey Thinks Free Speech No Longer Exists Because He Can't Sue The Simpsons For Satirizing Him

from the i...-just...-what? dept

This shouldn't need to be said, but The Simpons is satire. It often makes fun of people. In a recent episode it sorta, kinda mocked the singer Morrissey, as most of the episode was about Lisa's obsession with a band called "the Snuffs" and its moody lead singer "Quilloughby" (voiced by Benedict Cumberbatch). It was pretty clearly satirizing Morissey, and exaggerating a bunch of character traits many people associate with Morrissey, and mixing in some stereotypical character traits associated with washed up old rock stars. I can understand why some people might not like being gently mocked on a popular TV show, though I think some well adjusted folks might recognize that even being relevant enough to be mocked on The Simpons is probably a nice nod towards your cultural relevance, but apparently not Morrissey.

After his manager got all pissy and accused the show of being racist for its portrayal of Morrissey (?!?). Morrissey himself then posted a bizarre rant saying he wanted to sue and that there's no free speech any more and none of it makes any sense at all.

This is my first comment (and hopefully my last) on The Simpsons' episode - which I know has enraged many people. The hatred shown towards me from the creators of The Simpsons is obviously a taunting lawsuit, but one that requires more funding than I could possibly muster in order to make a challenge. Neither do I have a determined business squad of legal practitioners ready to pounce. I think this is generally understood and is the reason why I am so carelessly and noisily attacked.

For what it's worth, Morrissey does have a decently extensive history of litigation over mentions of him in the media he disagreed with -- so, uh, the idea that people would think they could attack him because he won't sue is already almost certainly not true. He has a history of suing. So, if anything that seems more likely to create chilling effects around anyone talking about him.

But, I guess we're sort of leaping over the larger point here: sue over what? It's a satire. They don't even call the character Morrissey. There is no legal basis for any kind of lawsuit. Especially in the US where The Simpsons is made. What possible violation of the law is there in lightly mocking the concept of an aging rock star? And how fucking huge of an ego must you have to think that that's something you can sue over?

But, his comment gets even dumber.

In a world obsessed with Hate Laws, there are none that protect me.

Um. Yeah, sorry, but no "hate laws" any where are designed to protect the flailing egos of aging rock stars from being gently satirized on a popular TV show. If you think that's what hate laws are for then you've got some serious ego problems.

Anyway, forgive me, we all know this because we can see how music - and the world in general, has become a mesmerizing mess, and we must let it go spinning along unbearably because free speech no longer exists. We all know this.

Wait, what? How does this even make any sense. Free speech no longer exists... because you can't sue a TV show for satirizing someone kinda like you for "hate" speech? It's a weird sort of brain that complains about a lack of free speech just sentences after whining about how you can't sue someone for their speech.

Everyone reacts to being mocked in different ways, but whining about how you want to sue to silence people, while simultaneously claiming there's no more free speech seems dumber than most options out there.

Filed Under: free speech, lawsuits, morrissey, satire, the simpsons

Tennessee Lawmakers Decide Chris Sevier Has Good Ideas, Push His Bill To Compel Speech From Media Outlets

from the SLANDER-MACHINE-has-entered-the-chat dept

There's no freer speech than compelled speech. That's the conclusion some Tennessee legislators have come to. Sure, they managed to whip up an actual anti-SLAPP law that's starting to curtail the state's reputation as a place where anyone can be sued for anything they say… including things they didn't actually say.

But the stuff flowing out the state's legislature lately has been atrocious. Late last year -- shortly after Donald Trump's election loss -- a state senator asked the federal government (Congress, specifically) to craft a law that would make flag burning illegal.

A few months later, the conservative hobby horse was taken for spin, resulting in an attempt to neutralize Section 230 protections by making it pretty much impossible for the state government to invest in anything. The bill pitched by legislators would prevent the state from investing money in any entity that benefitted from Section 230 immunity. Since Section 230 provides immunity to both providers and users, any users of internet services would also be deemed ineligible for state investment.

The state legislature isn't done threatening free speech and free speech-adjacent protections. For reasons only known to a few lawmakers, it's apparently time to start compelling speech. And for reasons no one will be able to adequately explain, presumably non-insane legislators are allowing Chris Sevier -- perhaps most famous for suing Apple for not preventing him from watching porn on his laptop -- to speak through them by introducing his whereas-heavy rants as legislative proposals.

Sevier managed to do the same thing in Rhode Island last year. He shoved a bill into some legislators' hands and somehow legislators thought attacking free speech with laws was a good idea. It's happening again in Tennessee: same legislation, same stupid name, same not-so-benign idiot pushing it.

The so-called "Stop Guilt by Association Act" takes aim at… something. What it actually does is compel speech. The bill would be an entertaining read if it were satire. But it's very real and there are already two versions (House and Senate) awaiting debate in the Tennessee legislature.

The bill [PDF] tosses around a lot of invective and inadvertently hilarious phrases. It opens up with some lip service to the constitutional right it's going to be violating shortly thereafter:

WHEREAS, the general assembly finds that the first amendment of the United States constitution asserts that the government "shall make no law abridging the freedom of the press";

and WHEREAS, freedom of the press in the United States is not absolute and is subject to certain restrictions, such as defamation law;

and WHEREAS, the state has a compelling interest to compel the press to promote the objective truth for the sake of the viability of democracy; for the safety, health, and welfare of our communities; for keeping with the spirit of the due process clause of the fourteenth amendment; and for stopping the press from serving as a slander machine…

Slander Machine is my new favorite post-punk band.

The only thing "compelling" here is the speech the legislature is planning on forcing out of media outlets. It's basically a "right to be forgotten" bill stapled to incredibly novel theories about what a free press is obliged to do when reporting on arrests, indictments, lawsuits, etc.

WHEREAS, there has been a growing trend for individuals to abuse process and maliciously prosecute someone they disagree with ideologically by filing spurious cases and controversies in various government venues for ulterior motives, knowing that certain segments of the media that align with their ideology would serve as an accomplice by engaging in a form of defamation in-kind by selectively reporting on the facts of the original case but not on the actual outcome in actions where the petitioner received less relief than originally sought, which cultivates an unjust prejudicial conviction in the court of public opinion, causing the cause to be shunned, avoided, and marginalized, and the media outlet guilty of defamation in-kind to the point that it unduly decreases the quality of life for the accused…

Hey, that sucks. But that's not a free speech issue. The government has no business -- much less a "compelling interest" -- telling media outlets they need to report on all aspects of any litigation or criminal case. Sure, it would be great if press outlets reported that the person they splashed all over the pages three months ago has been cleared of all charges, but that's just not going to happen in most cases, and the government has no right to force media outlets to publish articles detailing these often-ignored outcomes.

The legislation is completely unconstitutional. There's just no way around it. And allowing an unedited Sevier to engage in proxy speechmaking is just all kinds of stupid.

WHEREAS, the purpose of this act is to prevent unchecked media outlets from acting as slander machines by engaging in defamation in-kind, abusing the general public, and degrading the integrity of our institutions of justice through selective reporting on cases and controversies that cultivate false narratives to the point that it unduly injures the accused by eroding their civil liberties, causing them to be shunned and avoided by the general public due to a cloud of suspicion of wrongdoing that does not exactly align with the original allegations or the relief provided in a case and controversy lodged before a government body; protect the integrity of the press and encourage good character of the members of the press corps; deter malicious prosecution, abuse of process in general, the overcharging of defendants by prosecutors, and the seeking of excessive relief in the original cause complaint by plaintiffs; promote a mercy-centric justice system because no human is perfect; and deter convictions in the court of public opinion that do not necessarily align with convictions by our institutions of justice…

Left unexplained is how compelling speech "protects the integrity of the press." And while it's great to see someone (sort of) acknowledge prosecutors engage in overcharging and the criminal justice system is largely devoid of mercy, this bill was written solely to give government officials the power to make press outlets cover what they want them to cover. Everything else is ornamental, added to the bill to give the impression the sponsors aren't interested in respecting the First Amendment or editorial decisions made by press outlets.

This is some super-weird Fairness Doctrine-esque bullshit:

(a) A media outlet shall provide equal coverage in comparable time, place, magnitude, prominence, scale, and manner in the same format as the original reporting of a case and controversy, if:

(1) The media outlet reported on the facts of a case and controversy and the final verdict provided less relief against the accused than originally sought by the petitioner or less than could have been obtained by the petitioner; and

(2) The accused or the authorized agent of the accused sends an electronic or written notice demand to an authorized agent of the media outlet within twenty (20) days after the verdict or outcome, demanding that the facts surrounding the final and actual decision or outcome be reported and published as a follow-up to the original reporting

Who will run the press? Everyone but the press themselves apparently.

(d) If a media outlet reports on the facts of a case and controversy and displays the mugshot of the accused, and the accused is acquitted, enters into a plea of no contest, or receives an outcome more favorable than originally sought by the petitioner or available to the petitioner, then the media outlet shall:

(1) Take down or remove the mugshot from any digital publication, if possible; and

(2) Not display the mugshot in any follow-up publication that reports on the actual outcome of the case and controversy and shall only display images that the accused has authorized the media outlet use.

Whew. That's a lot of wrong to fit into eight pages of performative lawmaking. And that's what it is. It's a bill specifically written by one person who has an outsized axe to grind because of his inability to stop turning himself into the target of public ridicule.

What's worse is the legislators pushing this, who are apparently going to pretend the bill isn't a transparent attack on First Amendment protections.

Constitutionality issues aren't deterring the bill's two conservative sponsors, Rep. Susan Lynn, R-Old Hickory, and Sen. Janice Bowling, R-Tullahoma. They have introduced the legislation as House Bill 1219/Senate Bill 1297.

"You know what, I think you ask a lot of attorneys, line them all up, some would say that it's unconstitutional, some would say it's constitutional, some would probably have a mix," Lynn told the Times Free Press. "There's differing opinions."

LOL oh my no. That's self-deception right there, Rep. Lynn. No lawyer is going to tell you this bill is constitutional.

Said Bowling: "It's just to make certain that someone's reputation, in fact their life, gets kind of restored because it's hard, one person at a time who looks at you and says 'Wasn't that your picture on the front page or wasn't that your picture on the newscast or whatever?' And they say 'No, I'm innocent.' You know, well sure. It's just inequity."

Maybe so, but due process (which is also namechecked multiple times in the bill) is something to be expected from the government in criminal cases. The lack of follow-up on cases by the press doesn't violate anyone's due process rights.

It made the final legislative cut for the next season of Tennessee law-wrangling, which begins in just a couple of days. If there's any intelligence left in the legislature, the bill will get laughed out of the Capitol, rather than inch closer to the governor's desk.

Filed Under: 1st amendment, chris sevier, compelled speech, free speech, freedom of the press, tennessee

NYPD Training Document Shows How A Terrorist Response Group Was Weaponized To Attack Protesters

from the SRG:-we-are-the-violence-inherent-in-the-system dept

The protests that swept the nation following the killing of George Floyd by Minneapolis police officer Derek Chauvin were often greeted by police violence -- exactly the sort of police activity protesters were protesting against.

The largest police force in the nation -- the New York City police department -- was no exception. The NYPD has its own brutality problems and its share of dead citizens in its wake, but it appeared to have learned nothing from these experiences. It responded to protests with its own brand of violence and its own lack of personal responsibility, something encouraged by its expansive union contracts and decades of mayoral support.

The Intercept has obtained an internal manual for protest response by the NYPD's "Strategic Response Group." The SRG was tasked in 2015 with responding to unusual events, like terrorist attacks and, for some reason, largely peaceful protests. The SRG has its own internal problems that haven't been addressed by NYPD brass -- aligning it with the rest of the force, which hasn't been held accountable by the NYPD for years.

Here's an assessment of the SRG and its standard M.O., as summarized by Ali Winston of The Appeal last October:

Commanded by Inspector John D’Adamo, the SRG is composed of more than 700 officers and divided into five borough-based teams plus the Disorder Control Unit (DCU). The unit, which predates the SRG, is known for bringing “hats and bats” (clubs and long batons) to protests and engaging in violent mass arrests of questionable legality. It was central to policing Occupy Wall Street, as well as the 2003 anti-war demonstrations and the 2004 Republican National Convention—where over 1,800 people were arrested and held for days without charges, resulting in a $18 million legal settlement. The DCU’s tactics included using military-style training to break up crowds through a “disperse and demoralize” strategy, using undercover officers to spread misinformation among crowds, arresting demonstrators early to “set a tone,” and arresting “potential rioters” before they committed crimes.

"Hats and bats." The hats and bats remain in place. As do officers who should have been removed from the NYPD entirely, rather than become treasured additions to the Special Response Group:

Officer Numael Amador was removed from the unit and suspended for choking two activists during an attempt to stop the deportation of immigration rights activist Ravi Ragbir in the winter of 2018. Even before the Ragbir incident, Amador had 15 Civilian Complaint Review Board (CCRB) complaints on his record, including four substantiated allegations. Also that year, SRG officers were photographed manhandling City Council members Jumaane Williams and Ydanis Rodríguez. The unit has also been criticized for fatal shootings, conducting drunken driving stops, allegedly falsifying DUI charges to meet performance quotas, and backing away when the Proud Boys assaulted anti-fascist protesters outside an October 2018 event in Manhattan.

Added to the mix are the SRG's bicycles, which are wielded as weapons when not being used for officer transport. Somehow, the introduction of bikes as weapons of war against unhappy citizens manages to be the least disturbing thing about the NYPD's protest response. Here's John Bolger and Alice Speri of The Intercept:

In the days following Floyd’s death, and then again during protests last fall, New York police arrested hundreds of people, many with no probable cause. They pepper-sprayed protesters and struck them with batons, trapped them in the streets with no way out, pushed them to the ground, and shoved them with bikes. In Brooklyn, on May 30, an officer pulled down a man’s Covid-19 mask and pepper-sprayed him at close range, bragging about it to fellow officers but failing to provide the man with medical assistance, as required by police regulations. Days later, another officer in Brooklyn struck a protester in the back of his head while he was complying with orders to disperse, causing a gash that required ten staples. And in the Bronx, on June 4, police in riot gear corralled hundreds of people before an 8 p.m. curfew, then beat and arrested them under the watch of the department’s highest-ranking uniformed officer, Chief of Department Terence Monahan.

The SRG showed up with hats, bats, and bikes to "kettle" protesters, which is just cop slang for "violate rights." According to things that actually fucking happened that were documented by state investigators, NYPD officers (including SRG personnel) hit people with "blunt instruments" 50 times, unlawfully deployed pepper spray dozens of times, and otherwise assaulted protesters nearly 100 times.

The SRG's participation in protest control is well within its wheelhouse, even though it's mainly trained to handle terrorist attacks rather than First Amendment expression. Its response tactics are generally so brutal the SRG has colloquially been referred to as the "goon squad," a nod to ad hoc groups of enforcers who historically engaged in violence during labor disputes. The original "goon squad" (formed in 2015) included members of the NYPD's "Disorder Control Unit," a unit whose name makes it clear it was there to deploy beatings until city morale improved.

The SRG's protest response manual [PDF] was never meant to be seen by outside eyes. As The Intercept notes, the document contains destruction notices and is marked "law enforcement sensitive." Paging through it, one can see why the NYPD would have preferred it remained secret. The same tactics used to bust up union strikes (as in the original definition of "goon squad") are deployed by the SRG, which now commands $90 million of the NYPD's yearly budget. The SRG is given authorization to break up protests (even peaceful ones) using tactics refined over the years by the NYPD's frequent interactions with unhappy residents.

As the NYPD’s premier riot breakers, SRG units come heavily equipped, ready to make a show of overwhelming force against demonstrators. When a show of force fails, the SRG has a catalog of formations designed to break up protests. According to the SRG documents, these range from the basics, such as the “Wedge Formation,” used to split a crowd in half, to the more advanced, such as the “Separation Formation,” used to get between two dueling factions of protesters and push them apart.

One of the maneuvers best known to protesters is the “Encirclement Formation,” which is used “when there is a need to take a group of people into custody,” according to the guidelines. Commonly known as “kettling,” the formation allows police to surround protesters, leaving them no means of escape. Encirclement formations can be as small as one squad of eight officers or as large an entire platoon of four squads. In either case, the move to encircle protesters indicates that the decision to arrest has already been made, the document notes, and that the targets have been chosen.

These response tactics may appear logical when delivered in a presentation, but the SRG's response has veered closer to chaos. A group of people gathered at a local ICE office were "grabbed by the hair" and "thrown to the ground" by SRG officers, even though no protest had actually taken place at that point.

The manual also encourages SRG officers to use their bikes as weapons. According to the document, an officer with a bike is at least as effective as three officers who don't look quite as ridiculous.

NYPD training documents say that in close quarters, the bicycle represents a “force multiplier”: One cop on a bicycle can take the place of three officers with batons.

By holding their bikes across their chests and advancing on protesters, SRG officers can more swiftly contain citizens, making them much easier to arrest for exercising their First Amendment rights. The so-called "Bike Line Arrest Maneuver" (BLAM) is (somehow) made even more ridiculous by having SRG officers shout "BLAM! BLAM! BLAM!" as they advance on potential arrestees.

The end result isn't quite as funny. Protesters are jammed together, making them easier targets for pepper spray and rubber bullets, which combines with now-limited breathing space to wreak maximum havoc on residents' airways.

The SRG is internally toxic. And its worst aspects are being encouraged by the NYPD, which somehow feels something formed in response to terrorist attacks should be deployed to break up protests. At best, the SRG is simply the wrong tool for the job. At worst, it's a unit that sees little difference between terrorists and protesters.

Filed Under: 1st amendment, free speech, nypd, protests, terrorism

Lawyer Whose Main Claim To Fame Is Suing A News Org To Get It Shut Down, Now Complains About 'Cancel Culture'

from the oh-this-is-rich dept

As a bit of a reminder/disclaimer, Charles Harder was the main lawyer in the lawsuit against us, in which the plaintiff said directly that his intent was that we needed to be shut down. Of course, Harder's bigger claim to fame was his success in shutting down Gawker, thanks to a concerted effort by a billionaire who didn't like Gawker's reporting.

Harder has, in fact, relished his reputation for threatening and suing news organizations that publish information his clients dislike. Hell, he just published a whole book in which the title itself champions the fact that he killed off Gawker. Over the years, we've seen Harder threaten and/or sue plenty of media organizations over completely ridiculous things. He sued the New York Times over an opinion piece on behalf of Donald Trump's campaign (and lost), he helped a cryptocurrency company sue Forbes for an article about how the company was structured, he tried (and failed) to get multiple books about Donald Trump blocked from publication -- including suing over the book by niece Mary Trump and threatening a suit over Steve Bannon's book. He also threatened the New York Times over its big Harvey Weinstein expose.

In fact, nearly every aspect of Harder's claim to fame is built around his ability to threaten or sue media organizations into silence.

And the impact of his lawsuits has been very real. There have been stories about the Gawker Effect creating a real chill on investigative reporting, especially into malfeasance. And I've certainly spoken about the chilling effects of the lawsuit that was filed against me.

Given all of that, it's incredibly rich for Harder to now publish an op-ed decrying "cancel culture." And, yet, that's exactly what he's done. In a piece that originally appeared on InsideSources and is now popping up in actual newspaper op-eds, like the Jacksoville Journal-Courier, Harder argues that we need to stop trying to cancel people for speech. The whole thing would make me laugh if it didn't make me actually feel ill.

When it comes to the cancel culture debate, an important litmus test to apply when thinking about whether something—or someone—should be canceled is this: Does the punishment fit the crime? Vigorous debate, and even unpopular ideas, must be protected. Not only protected but encouraged. When people become scared to speak freely or are punished for expressing an unpopular view, American society inches closer to becoming homogenous, and where freedoms and diverse thoughts are suppressed.

Are you for real? Your career is highlighted by trying to shut entire media organizations down for articles that someone didn't like. Does the punishment fit the crime? Take a look in the mirror, Charles. Vigorous debate must be protected? Is the exception when a client pays you a lot of money to silence one side of that debate? Again, the only actual evidence we've seen of people being "too scared to speak freely" or "punished for expressing" certain views came as the result of lawsuits like yours that have chilled investigative reporting -- especially on the rich and powerful abusing their positions.

The Founding Fathers wrote the First Amendment to ensure for all Americans the right to free speech and free expression, without persecution. Everyone should feel free to exercise those rights without fear of backlash.

Really? Where do I send the bill for the hell you put me through?

But beyond hate speech and other terribly unacceptable speech, while I don’t condone disrespecting the flag or the national anthem, I strongly support people being allowed to speak their mind without fear of being canceled for it.

Then stop suing people and threatening others for their speech. Hell, your own history had me think twice before writing this very article, because I have no clue if you're going to sue me. You'd have no basis to do so, but that hasn't seemed to have stopped you in the past. That is the very chilling effect and "backlash" that you, yourself, created.

Harder's article goes on to discuss examples of what he believes is "cancel culture" -- conveniently leaving out much of the context and nuance behind them. This includes the now-infamous Harper's Letter, which we noted was not so much an essay on cancel culture, but about professional assholes seeking to hide behind a few legitimate cases of overreaction, and trying to avoid the social consequences of their speech. Incredibly, Harder's own description of the Harper's letter situation ends like this:

Naturally, the signatories caught flack for signing it.

Notice he didn't say they were "cancelled." They "caught flak." And, uh, just a few paragraphs earlier, you insisted that you supported and even encouraged 'vigorous debate.' And the Harper's Letter... created vigorous debate. Rather than embrace it, you're suggesting it's also an example of cancel culture. It seems like Harder is saying that he doesn't support cancel culture of some people, but is fine in other cases.

The end of Harder's piece is really quite something.

I believe that less cancellation, and more thoughtful consideration of context—plus appreciation for viewpoints we disagree with, particularly when communicated in a respectful, law-abiding way—would benefit all of us.

This is rich coming from you, who continue to sue media organizations and have just released a book proudly touting your own ability to shut down a media organization.

So applying the test to Colin Kaepernick: Did the punishment fit the crime? My answer: Where’s the crime?

What "crime" did I commit when you represented a client against me, Charles? What did I do that was worth eating up two and a half years of my life?

Filed Under: cancel culture, charles harder, defamation, lawsuits, slapp, slapp suits
Companies: gawker

Australian Government Proposes Stripping Internet Users Of Their Anonymity

from the another-fix-for-what-isn't-even-broken dept

I thought we had put this sort of idiocy behind us, but I see it's back again. In 2011, some German politicians suggested the country's youths be required to obtain some sort of internet driver's license following a party that got out of hand after a private Facebook invite was accidentally made public. Somehow, obtaining an ID to use social media services would prevent this from happening in the future, but officials were extremely light on details.

Five years later, our own DHS came up with pretty much the same idea. The DHS's attaché to the European Union suggested the online presence of terrorists and child pornographers demanded an across-the-board reduction in privacy for everyone. The only difference here was the analogy: rather than a driver's license to use the internet, all internet "travelers" would have to display some form of internet "license plate," making them readily identifiable to the government.

Two years later the idea resurfaced again, with the UK security minister pretty much repeating the DHS's suggestion from 2016: an internet driver's license that would allow law enforcement and other government agencies to readily identify anyone online, like predators grooming children in chat rooms or perpetrators of harassment.

But that was the last decade. Surely, we've seen the folly of demanding ID to use the internet, what with the serious complications it can cause for plenty of people who aren't engaged in criminal activity. Anonymity protects more than just the worst internet denizens. If this idea has had a decade to stick and still hasn't, perhaps it's time to finally let it go… oh never mind. Just last month, Senator John Kennedy announced his plan to introduce a online anonymity ban. If you need a list of reasons why this is a bad idea, Mike Masnick helpfully included a very long one in this post.

Less than two months later, the Australian government is pitching its own anonymity ban.

The cross-party report – chaired by Queensland LNP MP Andrew Wallace – called for users to be required to present 100 points of identification – which could include a driver’s licence, birth certificate, Medicare card, or passport – in order to open or maintain an existing social media account with companies such as Facebook, Instagram or Twitter.

The suggestion is that the measure would prevent people from using anonymous accounts to abuse and harass others.

This is the same report that notes plenty of people who benefit from online anonymity (LGBTQI persons, victims of domestic violence, minors, etc.) are in need of more protection and services. The report still somehow fails to recognize the damage stripping these users of anonymity would cause.

It also fails to recognize the simple fact that plenty of people using their real names engage in abusive and harmful behavior online all the time. There's a whole cottage industry of "conservative" figureheads complaining about being deplatformed for the terrible things they've posted using their real names.

The other justification for this bizarre push for mandated deanonymization is existing laws in Australia that also strip the country's residents of their privacy.

“In order to open or maintain an existing social media account, customers should be required by law to identify themselves to a platform using 100 points of identification, in the same way as a person must provide identification for a mobile phone account, or to buy a mobile SIM card,” the report suggests.

Two wrongs make a right, I guess. But it will be Australia's most marginalized residents who suffer the most if this becomes law. That's completely at odds with the aim of the entire report, which suggests the government should do more to protect these people. The government's cognitive dissonance is going to cause more harm than it prevents.

Filed Under: anonymity, australia, free speech, internet, privacy, real names, social media

It's Apparently Bipartisan To Threaten To Punish Companies Via Antitrust Law For Speech You Don't Like

from the not-how-any-of-it-works dept

A little over a week ago, we wrote about how Senator Elizabeth Warren clearly went over the line in threatening to punish Amazon for its speech through the use of antitrust laws. As we noted (pretty clearly, though many ignored it) at the time, there may be plenty of other reasons to use antitrust laws against Amazon, but no government official should ever even jokingly suggest that he or she would use the power of the government (via antitrust) to punish an entity for speech.

In response, many Warren supporters got incredibly mad at me, insisting that because (1) Amazon is big and (2) Warren has supported this position before, then it's perfectly fine for her to have said what she did. It was not.

On Friday, we got to see the same thing from the other side of the aisle. After Major League Baseball announced that it would move the All-Star Game out of Atlanta in protest of Georgia's new voting law, Rep. Jeff Duncan from South Carolina, stated out loud on Twitter that he intended to punish the company by drafting legislation to remove MLB's somewhat infamous antitrust exemption.

As we said with Warren, there may be very good reasons to remove MLB's antitrust exemption. In fact, I'd argue there are compelling reasons to do so. But, announcing plans to do so as punishment for MLB's clear protest over Georgia's voting law is pretty clearly an affront to the 1st Amendment. Rep. Duncan is stating directly that he wants to punish a company for protesting a law that he agrees with. This creates a real chilling effect. It may not chill MLB directly, but it likely would chill many other companies from speaking out for fear of retaliation from Duncan and his colleagues in Congress.

It was wrong when Senator Warren did it, and it's just as wrong with Rep. Duncan does it. It's also wrong for Senators Ted Cruz and Mike Lee to do it, jumping on Duncan's new bandwagon.

Punishing companies using antitrust laws (even if there are good underlying reasons to explore those antitrust issues) for their expression should never be supported, cheered on, or allowed. Just as we called on Warren to take back what she said, we now are saying Duncan, too, should take back his direct threat of punishment for speech. Unfortunately, since everything in politics these days seems to be it's okay to punish "enemies" and to support "friends" this will never happen. But it sure would be nice if we had politicians with principles who knew that it's wrong to punish anyone for speech, even if you disagree with their speech (and agree that the "punishment" is warranted for other reasons).

Filed Under: 1st amendment, antitrust, chilling effects, elizabeth warren, free speech, georgia, jeff duncan, mike lee, speech, ted cruz, threats, voting rights
Companies: amazon, mlb

Justice Thomas Goes Weird Again; Suggests Twitter Can't Moderate & Section 230 Violates 1st Amendment

from the supreme-Quart-justice dept

Today was a weird one for Justice Thomas. Along with his bizarre and confusing dissent in the Oracle/Google case, he has done another one of his random walks down conspiracy theory nonsense lane on an unbriefed issue in which he gets to, once again, attack the 1st Amendment. He's done this a few times now. Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan. Last year, he did it with an unprovoked and bizarre attack on Section 230. And now he's done it again.

Today, the Supreme Court declined to hear an appeal on the Knight 1st Amendment Center case, in which both the District Court and the Appeals Court made it clear that when a government official, using social media in an official capacity, allows replies on a posting (such as a tweet), they are creating a public forum in that space, and therefore cannot engage in viewpoint discrimination -- including blocking individuals for speech they disagree with.

A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a "public forum" and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official's statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.

And, basically, the argument has stayed with very confused and clueless people... until today, when Justice Thomas decided to put it front and center. It's hard to state how ridiculous this is. Not for the first time, Justice Thomas seems to have become the old cranky uncle who believes in conspiracy theory nonsense. Everything about what he writes here would fit more neatly into a Breitbart comment section or an OANN rant. That it's coming from a Supreme Court Justice is just crazy. Let's break this down bit by bit.

Respondents have a point, for example, that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.

Again, it does not seem odd at all. It's how it usually works. It's how it works in my example above, when the government makes use of a private forum. Private forums have their own property rights, in the same way that, say, a private baker can choose not to print a message it disagrees with on a cake, but the government itself could not write a law preventing that baker from printing protected messages on cakes. The whole nature of our Constitution is kinda based on the fact that the government has limited authority. It's bizarre that Thomas argues it's "rather odd" to say that the government has less authority than private entities. That's how it's always been.

The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages

Again, this is exactly how it has always worked. A private building owner can choose not to rent to the President to give a speech. But if they do rent, the President cannot block attendees based on their viewpoints. This isn't difficult.

Thomas then goes on a long Fox News-style rant about how the big internet companies have too much power, and that the Supreme Court will need to rule on that at some point. He suggests -- again, despite no briefing or oral arguments on this matter, but clearly influenced by nutty conspiracy theorists -- that it could be argued that sites like Twitter are common carriers or subject to public accommodation rules. Again, this is heard quite frequently among the conspiracy theory Trumpist set, but no serious legal analysis has suggested this is even remotely accurate.

The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 684 (1994) (O’Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.

In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot “be treated as the publisher or speaker” of information that they merely distribute. 110 Stat. 137, 47 U. S. C. §230(c)

The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.

There's a hidden dig at Section 230 at the end of that second paragraph above -- though one that completely misunderstand the nature of 230 and falsely suggests that it was intended to make these platforms act like common carriers (which is the exact opposite of the stated intention of the drafters of 230).

There's also a weird (and confusing) dig at Mark Zuckerberg, Larry Page & Sergey Brin -- claiming (incorrectly) that Zuckerberg has full control over Facebook and Brin & Page control all of Google.

To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.

That's... not quite right. There is, again, a kernel of truth in the idea that siloed services are different than protocol-based distributed services. That's a point I make all the damn time. But the conclusion elides (1) how protocols are actually managed and (2) how much control those three individuals actually have. It is true that those three have special voting power over their shares, but that does not give them the level of control that Thomas suggests. This also ignores the fact that in the last few years -- despite Thomas' claims -- we have seen competitors springing up over and over again.

Then we get to the bit that is getting a ton of attention today. Thomas argues in a footnote that Section 230 itself might violate the 1st Amendment. We first saw this insane argument -- and debunked it -- a few months ago. It has no basis in reality. Yet here's Thomas:

For similar reasons, some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship. See Volokh, Might Federal Preemption of SpeechProtective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021. According to that argument, when a State creates a private right and a federal statute pre-empts that state law, “the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.” Railway Employees v. Hanson, 351 U. S. 225, 232 (1956); accord, Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 614–615 (1989).

There are all sorts of oddities here. First, the citation of Eugene Volokh's piece entitled Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment?. Not that I'm against the Supreme Court randomly citing smart blog posts from thoughtful commentators, but it's still... a little weird. And if you actually read Volokh's piece, which itself is a response to the Vivek Ramaswamy and Jed Rubenfeld Wall Street Journal op-ed that I mentioned above, it seems fairly skeptical of the idea that 230 could possibly violate the 1st Amendment. Instead, it's trying to set out the strongest possible argument for that, which Volokh seems to make reluctantly for the sake of argument, noting multiple times that he doesn't necessarily agree with it, and it relies on a Supreme Court ruling that he believes is incorrect.

But the biggest oddity of all is... what the fuck is he actually trying to say here? His argument is that 230 might be unconstitutional because it might "pre-empt state laws that protect speech from private censorship." Beyond putting a shiny gloss on Volokh's argument, private censorship is allowed. That's kind of important. I mean, Thomas wrote a whole concurrence in the Masterpiece Bakeshop case arguing this very point... in the other direction.

Either way, this is now the third time in which Justice Thomas has randomly mused about free speech in a way that seems designed to attack social media and in line with the nutty conspiracy theories seen on Fox News/OANN/Breitbart. It's almost as if he's living in a weird alternative reality bubble and disconnected from the real world. While he mentions it in passing in his weird dissent, he might want to actually reread the Halleck decision which he signed onto, and which makes it quite clear that private companies can moderate content how they see fit on their platforms.

Unfortunately, though, as with his last two random outbursts on these issues, it's likely we're going to see lots of confused and ignorant people citing Thomas' random unbriefed musings as proof that their nonsense has legitimacy.

Filed Under: 1st amendment, clarence thomas, content moderation, free speech, section 230
Companies: twitter

Georgia Republicans Try To Punish Delta For CEO's Statement About Voting Rights Law

from the cancel-culture? dept

Punishing people or companies for their speech is never something any politician should ever be engaged in. It's why we called out Elizabeth Warren recently. And now we'll call out Republican legislators in Georgia, who tried (but failed) to punish Delta in direct response to its CEO's comments. The details honestly don't matter here, because all that matters is "politicians looking to punish speech" but we'll give the basic background.

As you may have heard in the news, a week ago, Georgia passed a big new voting bill that has been quite controversial. In short, like many recent bills, in the name of "election integrity" the law is likely to make it more difficult for some people to vote. Once again, there remains vanishingly little evidence of voter fraud in elections, and bills like this one generally appear to be a fig leaf for trying to disenfranchise voters who are more likely to vote for Democrats.

Initially Delta put out a statement that applauded some of the provisions in the bill (the parts that did expand some early and absentee voting). But praising those aspects of the bill was seen as approving the entire bill, which angered lots of people -- leading to calls to boycott Delta. It didn't then take long for Delta's CEO to come out with a surprisingly harsh condemnation of the law, which seemed like a pretty sharp turnaround from the original statement praising pieces of the law.

In response to that, Republican lawmakers in Georgia set out to take away certain tax breaks for Delta. Now, there may be perfectly good reasons to remove such tax breaks, but doing so directly in response to the CEO's statement, is not how any of this is supposed to work. But, the legislators in question seemed so sure that this was the right culture warrior stance to take that they didn't even try to hide the reasoning behind some made up argument. They just out and out admitted that this was punishment over speech:

“They like our public policy when we’re doing things that benefit them,” said House Speaker David Ralston, adding: “You don’t feed a dog that bites your hand. You got to keep that in mind sometimes.”

While the House passed the resolution, the Georgia Senate did not, so the issue is effectively dead, but still immensely problematic from a 1st Amendment stand point. Some might argue that this is the flipside of the calls for a boycott, but that's entirely different. A boycott (which, it should be admitted, are rarely effective) would be decisions by individual consumers. They can do that. Politicians out-and-out retaliating for speech is a quintessential 1st Amendment problem.

This isn't a Republican or Democrat issue. As noted, we've called out both Republicans and Democrats for this tactic. If you have legitimate reasons to legislate, that's fine. But legislation should never be punishment for speech.

Filed Under: free speech, georgia, punishment, republicans, voting rights
Companies: delta

Months After LAPD Officers Attacked A Journalist, Prosecutors Are Trying To Charge The Journalist For Failing To Disperse

from the that's-one-way-to-mishandle-criticism dept

Cops have been using protests against police violence to engage in police violence against journalists. The addition of federal cops to the heated mix in Portland, Oregon made this worse. The new cops amped it up so much journalists had to seek a protective order telling cops to stop doing things they knew they shouldn't be doing, like targeting journalists with things like pepper spray and rubber bullets.

But they're going further. Wading into the policing of protests -- something already fraught with First Amendment concerns -- cops are arresting journalists simply for covering demonstrations. An attempted prosecution of a reporter in Iowa ended with an arrested journalist being cleared of all charges. That it ever reached the point it needed to be handled by a judge and jury is an indictment of local cops and local prosecutors. (But not the kind of indictment that leads to prosecutions, unfortunately.)

A similar case is underway in Los Angeles. A reporter for website L.A. Taco released footage of him being attacked by LAPD officers while covering the city's chaotic "celebration" of a World Series win.

For months, nothing happened. Then, despite officers not arresting him last October, the city has decided to prosecute him for the criminal act he was never arrested for.

Lexis-Olivier Ray, a freelance journalist who covered the upheaval for the news website L.A. Taco, was not among those arrested. But last month he received a letter from the Los Angeles city attorney’s office notifying him that he faced a criminal charge for failing to follow an LAPD officer’s order to disperse during the tumult.

No arrest happened that night. A report written a week later by an officer raised this allegation. But it wasn't until February he was even informed he was considered a criminal suspect.

This looks suspiciously like retaliation by the LAPD for Ray's release of his recording of their abuse targeting him -- a recording that racked up more than 400,000 views. Further examination of police actions and statements made in response to inquiries by the LA Times confirms this suspicion.

The LAPD has no explanation for why officers did not arrest Ray that night for violating an order to disperse. It also had no explanation why none of the 19 people arrested were charged with failing to disperse or why only a person who identified himself as a journalist would be the only subject to this order to disperse.

Then there's this, which shows the LAPD is either incapable or unwilling to follow its own guidance on handling interactions with journalists.

The LAPD’s handling of Ray’s case seemed to run counter to orders it gave its own officers following the Dodgers celebrations. Two days after Ray’s video went viral, LAPD Deputy Chief Dominic Choi issued a departmentwide memo instructing officers and field commanders to respect the rights of reporters during demonstrations whether or not they had formal press credentials.

Nothing adds up to a legitimate criminal prosecution. But whatever the LAPD can do to hurt the journalist that hurt them by doing little more than providing uncut footage of being attacked by officers, they'll do. There's no heat of the moment, split-second decision making going on here. At best, bad judgment was displayed by some officers last October. That could have been the end of it. But now the LAPD has compounded its errors and it will be lucky to escape this debacle without being sued.

Filed Under: 1st amendment, free speech, journalism, lapd, lexis-olivier ray, los angeles