Washington Post Runs Bizarrely Ignorant Opinion Piece Claiming Florida's Content Moderation Law Is Constitutional

from the do-you-do-any-fact-checking dept

Look, I get that the Opinion sections of major newspapers want to run a variety of opinions, and thus might do less fact checking than the news parts of the paper, but it still seems just bizarre that they let any ignorant fool post absolute nonsense with no attempt at providing facts or the reasons why the underlying assumptions the opinion piece is based on are just wrong. Henry Olsen is apparently a "conservative" columnist for the Post while also being involved in some think tank that has been whining about big tech and, bizarrely, apparently suggesting that God believes Republicans should stop Twitter from having rights or something. Anyway, Olsen's column claims that critics of Florida's social media bill "are wrong" and that's it's perfectly legit for a state government to tell a company how to handle speech on their websites.

As you'll recall, Florida just signed its bad bill into law, and it's already being challenged in court, where the law is almost certain to be thrown out as unconstitutional.

Olsen, though, is sure that the bill is perfectly fine and there are no constitutional problems with it at all. After reading the headline, I expected to see some legal citations or actual, you know, factual arguments. But... that's apparently not what the Washington Post gets out of Olsen. First, Olsen insists that even though the facts don't support the idea that there's anti-conservative bias in how social media is moderated, he can cherry pick two examples -- Donald Trump and James O'Keefe -- as proof that it must be true and that something needs to be done:

The Florida law is a response to conservatives’ belief that social media companies unfairly target their limitations on speech. One can dispute how much that is actually true, but high-profile acts such as many companies’ continued ban on former president Donald Trump and the removal of Project Veritas’s James O’Keefe from Twitter provide more than enough proof to justify the reaction.

Except that doesn't deal with the reason why either one was banned. Trump was banned for using the platform to incite violence -- something that lots and lots of people (not just conservatives) have been banned for. O'Keefe was banned because Twitter claimed he was artifically amplifying his tweets. Again, lots of people have been banned for the same thing, including some of Trump's loudest critics. There is no evidence that there is bias in either of those moderation choices. Even more to the point, neither was banned for their "conservative" views. Both were banned for violating long-standing Twitter policies.

So, that's already a weak start to the article, but apparently that's the best Olsen can do. Because then he tries to dig into why there's no violation of the 1st Amendment here, and it seems to be... because Olsen doesn't think it's a big deal.

The question, then, is whether Florida’s requirements would help rather than hinder free expression of sensitive political issues, the core element the First Amendment seeks to protect.

Social media is an important, if not the most important, realm in which political debates are conducted today. As a result, access to social media is essential to any entity seeking to influence those debates. When a network denies someone access, it is significantly hampering the ability to successfully engage in political debate. That alone weighs heavily in favor of ensuring access is not unfairly or arbitrarily restricted or denied.

What? So, uh, the past two decades cable TV news has been one of the biggest influences on political debates and how they're conducted today, and I can't imagine Olsen would argue that the government should regulate that Fox News has to stop simping for Trump all the time, and would need to balance it out with some Biden love. Because that would be a very clear 1st Amendment problem.

Olsen then at least acknowledges West Virginia State Board of Education v. Barnette, which establishes clearly that the government cannot compel speech, but then says that forcing websites to host speech isn't really compelling speech. Again... this is based on... Olsen believing it's true. Not any actual legal argument or citation:

The question of compelled speech is also unconvincing. No reasonable viewer thinks that a TV station running an ad is endorsing the views it espouses. Similarly, a social media company that posts comments identified as coming from another party is clearly not making those statements itself. Allowing others to speak is not the same as forcing a company to endorse the speech.

What? That's not how any of this works. But all of this is based on Olsen just not understanding the regulations regarding broadcast TV and radio and assuming they magically apply elsewhere. This is the kind of thing you would think a newspaper like the Washington Post would have someone on hand to pull Olsen aside and explain to him that his very premise is mistaken. But, nope, Olsen knows that there are some regulations about political advertising on TV and radio, and assumes that it's easily applied elsewhere:

The federal government has long treated companies intrinsic to mass communication differently than other firms or individuals. Television and radio stations, for example, are required to run commercials from registered candidates for public office regardless of their content. They are also required to charge candidates lower ad rates than they charge commercial purchasers. Both requirements are justified as ways to ensure wide access to the entities that publicize ideas to a mass audience. The gain for political speech thus outweighs the burden placed on the communications companies.

But the reason for those regulations and what they apply to is kind of the key here. The FCC's regulations on this apply to broadcast stations. That is it applies to stations that have a license to use public spectrum. As such -- and only because they are using the public airwaves -- then the FCC can put these requirements on them. And, as the Supreme Court has made clear, these kinds of regulations are only constitutional because they're using public spectrum, via a license from the US government.

You can't just say -- as Olsen does -- that because there are regulations on broadcast TV and radio, that there's no problem with applying similar rules to totally private systems that don't rely on public spectrum. Somewhat hilariously, this is the identical ignorant argument that people on the opposite side of the political spectrum are making to try to apply the Fairness Doctrine to Fox News. It's unconstitutional in both cases.

And it's bizarre that no one at the Washington Post thought to suggest to Olsen that if he's going to point to regulations that are only constitutional because they're on public broadcast spectrum as his proof, he'll have to explain how the government can apply them to non-public spectrum, non-licensed networks, he might want to explain how that can actually work, when the Supreme Court has made it clear it does not. Though, amusingly, if his argument did work, it would also mean that the government could force Fox News to implement the Fairness Doctrine as well (perhaps using Olsen's own silly arguments) and I imagine he'd be pretty pissed off about that.

Anyway, Olsen's free to be wrong however he likes, but one would hope that the Washington Post wouldn't want to be in the business of publishing utter garbage, even if it is in the opinion section.

Filed Under: 1st amendment, content moderation, fcc, florida, henry olsen, public airwaves, regulations

Fact Check: Yes, Fact Checking Is Totally Protected By The 1st Amendment

from the i-mean,-holy-shit,-dude dept

The dumb takes on social media efforts to deal with problematic content keep getting dumber. Supposedly "conservative" commentator David Marcus has now written an opinion piece for Fox somehow arguing that fact checkers used on social media sites should be regulated. He's not the first to suggest this -- we just recently wrote about a Michigan legislator who was pushing an unconstitutional bill to regulate the fact checkers, but that this is the hill supposedly "conservatives" want to die on, seems particularly stupid.

Fact checking is protected by the 1st Amendment.

It is expressive. It is a core part of journalism as well, which is doubly protected under the "freedom of the press" part of the 1st Amendment. Marcus' article is so filled with dumb that it needs a fact check itself (as if Fox News ever did that sorta thing).

Nobody is checking the fact checkers, and it is time that changed. It’s time for government to regulate the fact checking industry.

Okay, let's start with Fox News. Should we have government regulators crack down on Fox News consistent fact check failures? Including publishing this nonsense article? Of course not. It's protected by the 1st Amendment as well.

This may seem antithetical to traditional conservative values of small government, but the ubiquitous and monopolistic nature of social media, the power it has to frame how we see the world, is an existential challenge. We cannot be slaves to orthodoxy if that means Americans are subject not only to lies, but also the censorship of the truth.

It's not just antithetical to the values of small government, it's antithetical to the 1st Amendment, which seems like a bigger problem. And, no, social media does not have "the power to frame how we see the world." After all, studies have shown repeatedly that Fox News's own lies have had a much bigger impact than social media in framing how people see the news. And, again, that's protected by the 1st Amendment.

The truly incredible part in this, of course, is that folks like Marcus seem to only want regulations when he believes the people he agrees with are treated unfairly. When it's others? He'd be the first one screaming about the Constitution. He's not principled, beyond "my team must win, and if not, I'll play victim."

Marcus' attempt to deal with the 1st Amendment issue is laughable to say the least:

The First Amendment rightly renders government powerless to regulate news outlets’ publishing content from their own in house fact checkers -- they are protected by freedom of the press. But third party independent fact checkers are another story entirely.

No, they're not another story altogether. Fact checking is expressive and it is a function of the press as well. You cannot regulate it.

These are entities such as Lead Stories, Politifact, and even the Associated Press that offer their fact checking expertise to social media platforms so the latter can claim they are not making editorial decisions. But that only works if third party fact checkers are operating objectively and without bias. It is quite obvious that this is not the case. 

Again, it's pretty fucking rich for someone on Fox News to be whining about "bias."

So what can be done about this dangerous situation? A new bill before the Michigan House of Representatives is a move in the right direction. The bill would require fact checkers to register with the government and carry insurance to cover payment to those who suffer financial damages as a result of a bogus fact check.

Laws like this can establish simple, uniform practices that fact checkers must abide by to provide fairness in the service they provide. 

No, laws like that are unconstitutional attacks on 1st Amendment protected activity.

 Regulating the fact checking industry would provide much needed accountability to the American people.

No, it's an effort to intimidate fact checkers who call out bullshit like yours, Marcus.

Facts are supposed to be stubborn. Either an article or post is factual or it isn’t.

Your article is not factual.

Regulating the fact checking industry would not be any kind of government censorship of the media; it would not deprive any publishing entity from running a fact check. It would merely ensure that companies which sell their fact checking services are applying objective standards when evaluating material. This is something they should be doing anyway, and is something that they are demonstrably not doing at present. 

I mean, come on. This one is too easy. Just turn it around: "Regulating cable news would not be any kind of government censorship of the media; it would not deprive any publishing entity of saying what it wanted. It would merely ensure that cable TV channels are applying "objective standards" in airing content. This is something they should be doing anyway, and is something they are demonstrably not doing at present."

Same damn thing.

The American people do not just have to sit back and take it as social media platforms, which provide huge swaths of them with their news, hire censors that lie about what constitutes a fact.  

No, they don't have to sit back. They can step up and speak out wherever else they'd like -- such as on Fox News, or on their own websites. What they can't do is get the government involved to intimidate fact checkers and threaten them with fines if they fact check "the wrong way."

Again, this is easy to demonstrate with just a few changes: "The American people do not just have to sit back and take it as Fox News, which provides huge swaths of them with their news, hires propagandists that lie about what constitutes a fact." And, again, American people don't have to sit back. They can ignore Fox News, they can watch other channels, they can speak out about Fox News's continued blatant propaganda and misinformation... or they can boycott their advertisers. There's lots they can do, and lots users of Facebook can do. What they cannot do under the Constitution, is pass a law regulating expressive activity like fact checking.

The people, through their elected officials absolutely have a right to ensure that this industry is providing a level playing field.

Again, let's apply that to Fox News as well to see how laughable a statement that is.

If one was to sell a service in which they weighed produce to set a price it would and should be illegal for them to secretly use different scales depending on the farmer or the type of produce.

Weighing this is not expression, genius.

Throughout the past year biased fact checking has done irreparable harm to the body politic. 

Throughout the past decade, biased Fox News has done irreparable harm to the body politic. How the hell do people like Marcus not recognize that every claim they're making applies equally back on them.

Regulating the fact checking industry would go a long way towards ensuring the American people are never misled in this manner again. 

Again, replace fact checking with "Fox News." And imagine how David Marcus would react if there were a serious legislative proposal to that effect.

Social media companies want to have it both ways. They insist that they are not publishers and therefore not liable for what appears on their supposedly neutral platforms. But they also insist that it is fine for them to suppress content because a third party fact checker, chosen by the social media company itself, says they should.

This is not what they insist. This is what a bunch of fake "conservative" idiots have pretended they insist in order to knock down a strawman.

There is nothing special about fact checkers that protects them from regulations requiring them to be fair and honest in their dealings.

They engage in expressive activity. Which makes them protected under the 1st Amendment, just like you and me.

This entire opinion piece is full of misleading, nonsense, and blatant factual errors. But, yeah, sure it's the "fact checkers" that need regulating.

Filed Under: 1st amendment, content moderation, david marcus, fact checking, free speech, journalism

First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed

from the and-we're-off dept

On Monday we noted that Florida Man Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.

Of course, it's one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).

The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.

The Act, a first-of-its-kind statute, was enacted on May 2, 2021 and signed into law on May 24, 2021 to restrict the First Amendment rights of a targeted selection of online businesses by having the State of Florida dictate how those businesses must exercise their editorial judgment over the content hosted on their privately owned websites. The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs’ members, by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies.

These unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material: pornography, terrorist incitement, false propaganda created and spread by hostile foreign governments, calls for genocide or race-based violence, disinformation regarding Covid-19 vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit goods and other violations of intellectual property rights, bullying and harassment, conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses. Meanwhile, the Act prohibits only these disfavored companies from deciding how to arrange or prioritize content—core editorial functions protected by the First Amendment—based on its relevance and interest to their users. And the Act goes so far as to bar those companies from adding their own commentary to certain content that they host on their privately owned services—even labeling such commentary as “censorship” and subjecting the services to liability simply for “post[ing] an addendum to any content or material posted by a user.”

Under the Act, these highly burdensome restrictions apply only to a select group of online businesses, leaving countless other entities that offer similar services wholly untouched by Florida law—including any otherwise-covered online service that happens to be owned by The Walt Disney Company (“Disney”) or other large entities that operate a “theme park.” This undisguised singling out of disfavored companies reflects the Act’s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights of “editorial discretion over speech and speakers on their property.” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).

Rather than preventing what it calls “censorship,” the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis’ own press release that touts the Act as a means to “tak[e] back the virtual public square” from “the leftist media and big corporations,” who supposedly “discriminate in favor of the dominant Silicon Valley ideology.”2 The Governor’s press release also leaves no doubt about the Legislature’s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that “our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, [this] … will not be tolerated.”

Although the Act uses scare terms such as “censoring,” “shadow banning,” and “deplatforming” to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies’ rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences. The legislative record leaves no doubt that the State of Florida lacks any legitimate interest—much less a compelling one—in its profound infringement of the targeted companies’ fundamental constitutional rights. To the contrary, the Act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the State’s disapproval of how the companies decide what content to display and make available through their services.

The Act is a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands. Could Florida require that the Miami Herald publish, or move to the front page, an op-ed or letter to the editor that the State favored, or demand that the Herald publish guest editorials in a state-sanctioned sequence? The answer is obviously no—as the Supreme Court unanimously held five decades ago in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks to repeat that history—and to go even further by, for example, compelling the targeted companies to alter and disclose their editorial standards and to provide “detailed” information about the algorithms they use to curate content.

There's more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.

The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn't realize that the bill creates a new "Antitrust Violator Vendor List" but then makes it so it only can apply to social media companies (that don't own a theme park).

Section 3 is another example of the Act’s irrational targeting of a select, disfavored group of online businesses. Although federal antitrust laws—and Florida’s counterpart statutes—apply across different industries, Section 3 irrationally singles out only the defined “social media platforms” for disfavored treatment because of their role in hosting and moderating online content. Id. Section 3 establishes an “Antitrust Violator Vendor List” of companies and individuals subject to an absolute contracting bar with the State of Florida. Id. (adding § 287.137(3)(b)). These persons and affiliates are also prohibited from receiving “economic incentives” such as “state grants, cash grants, tax exemptions, tax refunds, tax credits, state funds, and other state incentives” under Florida law...

The Antitrust Violator Vendor List may include those merely “accused of” violations by the Florida “Attorney General,” “a state attorney,” or federal authorities (subject to a cumbersome and inadequate process for contesting the Attorney General’s decision before a state administrative law judge). The Act empowers the Florida Attorney General to place an accused company “temporarily” on the Antitrust Violator Vendor List upon a finding of mere “probable cause that a person has likely violated the underlying antitrust laws.” Id. (adding § 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-defined group of officers, directors, shareholders, and even employees involved in “management” of a company placed on the List, as well as a broad group of “affiliates” of companies that are permanently placed on the List.

Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:

The Act is a smorgasbord of constitutional violations.

In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution's limitations as the federal government is). The 5th Amendment claims have to do with due process:

The Act violates due process because it fails to provide fair warning of what conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). A law is unconstitutionally vague when people “of common intelligence must necessarily guess at its meaning,” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926), or where the law lacks definite and explicit standards thereby encouraging “arbitrary and discriminatory” application, Kolender v. Lawson, 461 U.S. 352 (1983).

There's also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it's regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.

It's a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that's because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis' biggest fans will simply love the fact that he's wasting their money this way.

Filed Under: 1st amendment, 5th amendment, content moderation, due process, florida, ron desantis, section 230, standing
Companies: ccia, netchoice

Police In India Raid Twitter Offices After Twitter Labeled A Tweet By A Government Official As 'Manipulated Media'

from the intimidation-tactics dept

Remember the absolute shit fit that Donald Trump threw after Twitter placed warning labels on some of his tweets about mail-in ballots? That resulted in the ridiculous executive order to undermine Section 230, even though all Twitter had done at the time was add more speech to Trump's tweets and pointed out that they were presenting misleading information.

To some extent, however, we should be thankful that the power of the US President is at least somewhat limited, or we might have ended up with a situation like what happened in India this week. The story begins similarly to what happened with Twitter labeling some Trump tweets. In this case, there was something of a political spat in India, where the Indian National Congress (more or less the opposition political party, not a legislative body as the name might imply), complained to Twitter that the leading BJP party was spreading "forged documents" on Twitter. They asked Twitter to suspend the accounts of some BJP leaders who were supposedly spreading those documents.

The "forged documents" were basically misleading claims by the BJP that Congress was using a "toolkit" to undermine the Indian government's response to the raging pandemic.

After apparently reviewing this request to suspend those accounts, Twitter instead took what should be seen as a perfectly reasonable middle ground approach, and flagged the tweets of a BJP spokesperson noting that they were "manipulated media." The "manipulated media" flag is one of the first that Twitter started using in its attempt to flag misinformation and it has been used for well over a year now in a variety of contexts.

Now matter how you look at it, this is a "more speech" approach to dealing with potential misinformation. Twitter is adding its own speech to the tweets, noting that what they show appears to be manipulated. This hardly seems like a reason for law enforcement to get involved -- but get involved they did. Police first sent a notice to Twitter demanding an explanation over why it placed the "manipulated media" tag on that tweet, and then followed it up by raiding two separate Twitter offices in order to conduct a "search" for such information.

Of course, Twitter has all of its employees working from home these days (especially in India where there is still a massive COVID outbreak), so that wasn't particularly effective. But this is also against the backdrop of the Indian government just recently threatening to throw Twitter employees in jail if they didn't remove various criticisms of the Indian government, including over both protests and its handling of the pandemic.

This is all kind of terrifying when you look at it. It seems like a blatant intimidation technique from the ruling government trying to stifle not only criticism, but to suppress attempts to fact check some of its own disinformation.

Filed Under: bjp, content moderation, covid, flags, india, india national congress, intimidation, manipulated media, police
Companies: twitter

Governments Around The World Want To Require Local Employees Of Internet Firms, So They Have People To Jail

from the not-a-good-trend dept

One of the earliest themes on Techdirt, going back decades, is the difficulty of jurisdiction on the internet that easily crosses nearly all geographical borders. We wrote a post back in 2002 raising the question of how is it possible to enforce local laws on a borderless internet. Of course, that hasn't meant that various countries haven't tried -- either trying to issue global injunctions or going even more extreme. One preferred idea is to just jail the employees of a company who happen to be in the country that wants content blocked. Over the years we've seen that happen (or attempt to happen) in Italy, Brazil, and recently India.

For many companies, the best way to deal with this is to avoid having any employees in those countries where such threats are likely to happen. There's a reason Google pulled employees out of Russia, for example.

But now that various countries seem to enjoy the ability to jail random employees of internet companies who won't do they're bidding, they're moving to pass laws to require local employees if a company wants to operate in that country. In many cases, these seem to be fairly transparent attempts to make sure that the government has hostages it can threaten to jail should the company not suppress content in the way its leaders wish.

What's particularly nefarious about this, is that these generally authoritarian countries are able to "defend" these laws on the same basis as (mostly European) countries demanded data localization laws, saying that data on local citizens needed to be kept within that country to protect their information from -- say -- snooping NSA eyes and ears.

Legislation requiring in-country representatives and local data storage already exists in Germany, where it was designed to address issues like hate speech. But experts say in countries that have a history of cracking down on internet freedoms, similar laws could be used to intimidate or threaten staff at social media companies. The regulations are already in place or are being considered in Brazil, Poland, India, Turkey, Vietnam, and Pakistan and could further erode free expression on the internet around the world.

Jason Pielemeier, policy director of the Global Network Initiative, an organization that promotes free expression online, has nicknamed the regulations “hostage-taking laws,” because they could be used to detain workers from social media platforms if they refuse to take government orders. “I think it’s less likely about threatening to shoot someone,” Pielemeier said. “It’s more about ‘We’re going to take their liberty away.’”

The whole article linked above is really good in detailing just how sketchy these laws really are -- yet how the countries are trying to "justify" them by saying they're no different than data localization or content moderation laws in countries like Germany:

Turkish lawmakers helped justify the law by pointing to similar regulations in Germany, though Akdeniz believes the country is really taking cues from Russia, which recently throttled Twitter following massive protests. First passed in 2017, Germany’s notorious Network Enforcement Law (NetzDG) compels social media companies to swiftly remove illegal content or face exorbitant fines. Like many of the laws currently being considered, it also requires that social media platforms with more than 2 million users in Germany appoint a local German representative. “To convince people in countries like Turkey, it’s always better to say, ‘We are only doing what Germany’s doing,’” said Akdeniz.

Over the past few years, a number of countries have used NetzDG as inspiration for their own efforts to curb online freedoms, according to a report from the human rights think tank Justitia. “In a global free speech race to the bottom, the NetzDG matrix has been copy-pasted by authoritarian states to provide cover and legitimacy for digital censorship and repression,” wrote Jacob Mchangama, the founder of Justitia and a co-author of the report.

This is really important -- especially as we enter a time when people in the US are pushing the message that since other countries have stricter content moderation laws, it's no problem to have them in the US. This ignores how governments use and abuse these laws to shut down important and valuable speech (often speech from marginalized groups that is critical of the government).

Filed Under: employees, governments, intimidation, localization, social media

FCC Commissioner Brendan Carr Not Interested In Baltimore Prosecutor's Request To Have The FCC Investigate Her Critics

from the FCC-isn't-here-to-help-you-curtail-other-people's-rights dept

Earlier this month, Baltimore prosecutor Marilyn Mosby decided to do something she definitely shouldn't have. Mosby may claim to be part of the "progressive prosecutor" movement, but her decision to ask the federal government to investigate a prominent critic of hers is pretty goddamn regressive.

Mosby doesn't care for the allegedly slanted coverage she's receiving from WBFF, a local Fox affiliate. Rather than accept the fact that criticism -- even when it's made in bad faith -- is part of the public service job, she decided to ask the FCC to open an investigation into the station. She attempted to justify this by quoting the FCC's own words back at it, noting that FCC rules say "intentionally distorting the news" is forbidden.

Distortion in newscasting has been a thing for years and it takes far more than the pretty innocuous examples provided by Mosby to get the FCC to start trifling with the First Amendment. Most of the anti-Mosby stuff seemed to be the usual anti-whatever stuff that happens when news stations call in commentators to add a bit more opinion to the news. Mosby also complained she was receiving too much coverage, citing WBFF's 248 stories about her in 2020 -- far more than she observed at any competing news outlet.

Mosby claimed she had all the respect in the world for the First Amendment. But apparently WBFF had too much free speech at its disposal and that's why the FCC needed to step in.

One FCC commissioner has responded [PDF] so far. And it's Brendan Carr, the FCC's hackiest partisan. Taking a break from his usual business of assailing social media companies for dumping his favorite people from their platforms while vaguely threatening to do "something" about Section 230 immunity, Carr manages to make some good points despite himself. It probably helps that his target -- Marilyn Mosby -- is on the other side of the political fence. (h/t Volokh Conspiracy)

FCC Commissioner Brendan Carr issued the following statement in response:

“The State’s Attorney’s Office, led by Democrat Marilyn Mosby, has launched a chilling and direct attack on free speech and journalistic freedom. The complaint her office filed with the FCC asks the Commission to censor a newsroom simply because journalists are doing their constitutionally protected jobs and shining a light on the work of the State’s Attorney. Invoking the power of the state to silence journalists for unfavorable coverage strikes at the very heart of the First Amendment.

“It is particularly troubling that a public official would work to silence reporters that are investigating her work at a time when federal prosecutors have already opened a criminal investigation into her activities.

“Indeed, the day after the State’s Attorney’s Office filed its complaint with the FCC, the targeted newsroom was awarded four prestigious Regional Edward R. Murrow awards for journalism excellence, including for one of its stories covering the work of the State’s Attorney’s Office.

Ouch. Carr then flips Mosby's words around to go after her, saying the only "troubling, abhorrent and downright dangerous" behavior he sees here is Mosby's attempt to silence her critics by siccing the FCC on them.

Then it goes a bit off the rails, with Carr turning this into a partisan thing rather than a "don't ask the FCC to fuck with the First Amendment" thing.

This complaint is part of a recent and troubling surge in efforts by Democrat officials to pressure the FCC and its regulated entities into censoring news coverage and political speech that Democrats don’t like. The FCC should make clear that it will not operate as the DNC’s speech police. That is why the FCC must dismiss this complaint with prejudice by the end of today.

That's pretty rich, considering this statement was released the same day it came to light the Trump/Barr DOJ sent a grand jury subpoena to Twitter demanding personal information about a user currently being sued for hurting GOP Congressman Devin Nunes' feelings. Abuse of federal powers is pretty bipartisan. But the most recent administration will be remembered forever for its four years of antipathy towards journalists and critics of Donald Trump.

The other commissioners will have to weigh in before this is final, but I don't like Mosby's odds. No matter which side of the political spectrum the other commissioners sit on, there's nothing in Mosby's complaint that justifies opening an investigation that has the potential to wreak havoc on free speech protections.

Filed Under: 1st amendment, brendan carr, fcc, free speech, marilyn mosby, news coverage
Companies: wbff

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