fox – Techdirt (original) (raw)

Senate Hopeful Files Idiotic Lawsuit Against A Bunch Of TV Stations Over An Ad He Thinks Is Defamatory

from the way-to-lose,-loser dept

Whew. Not a great look there, Mr. Senatorial Candidate.

Wisconsin Republican Senate candidate Eric Hovde has launched a lawsuit against several Wisconsin television stations and a Democratic Party aligned PAC for running ads that he claims defamed him.

The ad states that Hovde, the CEO and chairman of the board for Sunwest Bank, and his family “rigged the system to rake in $30 million in government subsidies and loans, and now he’s sheltering his wealth in shady tax havens around the world.” It also claims at one point that Hovde is a “California banker.”

The ad was cut by WinSenate PAC. The outfit is one of the defendants named in the suit, along with Gray Media Group, Nexstar Media, Inc., The Evening Telegram Company, Sinclair Communications, LLC, Fox Television Stations, LLC, ION Media Networks, Inc. and Scripps Media, Inc., according to an Aug. 9 filing.

None of this is advisable. And yet, it appears the Holtzman Vogel law firm advised Hovde to run with this. The law firm sent letters to the defendants — a long list that includes seven defendants who cannot possibly be found liable for running the ad produced by WinSenate PAC. The other defendant would be the producer of the ad, which has almost a zero chance of being successfully sued for the claims it made in the ad — not when the defendant is a public figure.

The letter sent to the stations makes a bunch of claims about the ad, which is fine. But the only correct target for this lawsuit is the creator of the ad, even though the Holtzman Vogel law firm goes out of its way with a bunch of footnotes in hopes of making the media company defendants feel like they could be held liable for running the PAC’s ad.

Your station is under no obligation to air advertisements sponsored by non-candidate organizations (such as “WinSenate”), and you should reject such advertising on the basis of its false, misleading, and deceptive content. In fact, your station is legally responsible for the content of non-candidate advertising. Your station has an obligation both to its viewers and, under the law, “to protect the public from false, misleading or deceptive advertising.” This duty necessitates “the additional obligation to take reasonable steps” to affirmatively determine the veracity of the statements contained in advertisements and the authenticity of the sources cited. You must be able to satisfy yourself “as to the reliability and reputation of every prospective advertiser.” Failing to take these steps, and allowing false and misleading advertising to air, may be “probative of an underlying abdication of licensee responsibility.”

Wow. Sounds so very serious. But there’s really nothing actionable happening here, no matter how many footnotes were attached to this pile of words.

The first sentence is true: stations are not obligated to carry ads from political action groups. They are — if they’re subject to FCC regulations (over the air broadcasters) — obliged to carry ads from political candidates. But the thing about those ads is they’re political speech, which isn’t subject to the same “truth in advertising” standards private companies must adhere to.

As for the rest of the citations, they’re mostly meaningless. (And they only mean something if every TV station listed is FCC-licensed.) One citation points to this 1961 public notice posted by the FTC and FCC on broadcaster duty when it comes to truthful ads. And all it really says is that broadcasters need to make a good faith effort to prevent blatantly false (or blatantly offensive) ads from being aired on their stations. It does not require them to vet every claim made in the ad, nor does it expect them to recognize every false claim made by advertisers. Instead, it makes broadcasters aware the FTC and FCC will publish “alerts” when any entity raises these agencies’ suspicions and cautions that running ads from companies listed on “alerts” would raise “serious question[s]…as to the adequacy of the measures instituted and carried out by the licensee…” In other words, stations need to make an effort to stop false ads from airing, provide documentation of their efforts, and definitely avoid running anything from entities flagged by the feds.

The letter also cites this 1978 court opinion in support of its claims of station liability for the ads Eric Hovde is suing over. In this case, the FCC investigated Cosmopolitan Broadcasting, an FCC-licensed broadcaster that had basically turned over all of its content to third parties, allowing them to purchase air time to run their own content and ads. The FCC said that Cosmopolitan was still responsible for vetting this third party content, which it had clearly failed to do.

The upshot of the decision was Cosmopolitan being ordered to (re-reads decision) pencil-whip a new checklist written for it by the DC Circuit Appeals Court judge — one that stated who reviewed what third-party content and when. It’s hardly the sort of thing that should strike fear in the stations being sued by Hovde. Nothing in any of the citations suggests the stations can be held directly liable for WinState ad — at least not by Eric Hovde. The FCC and/or FTC could take action, but nothing indicates either of these entities ever suggested failing to vet ads is an actionable claim in civil court.

WinState PAC is the only legitimate defendant in this lawsuit, but that doesn’t mean Eric Hovde is any less likely to lose. The claims made in the ad were based on content published by ProPublica in one of its newsletters.

Between 2003 and 2013, Hovde’s asset management firm Hovde Capital reported non-controlling investments worth up to $74 million in more than a dozen Bermuda-based insurance companies, according to a PI analysis.

Bermuda doesn’t have a corporate income tax and has even offered “tax assurance certificates” to ensure holders temporary insulation in the event that ever changes. Every Bermuda insurer that Hovde Capital invested in held those certificates, according to a review of SEC documents.

Now, that’s not exactly the same thing as “sheltering his wealth in shady tax havens around the world.” But it could be inferred from ProPublica article that Hovde doesn’t mind helping other people shelter their wealth in shady tax havens. The gist of the ProPublica reporting is that these investments seem a bit hypocritical when Hovde stated in ads during his first Senate run in 2012 that it was “wrong” that major corporations dodged corporate taxes and, in 2021, expressed support for a minimum corporate tax rate bill, claiming he’s always “hated” the fact that “companies like Goldman Sachs or Apple can put all their technology in offshore places and pay no taxes.”

Hovde can go ahead and pursue this lawsuit, but it’s a non-starter. The assertions made by the PAC might have been a bit off-base, but they’re far from the deliberate indifference needed to reach the actual malice standard Hovde will have to prove to secure a ruling in his favor. This is spray-and-pray litigation Hovde apparently hopes will silence one of his critics, either by forcing the PAC to pull the ad or intimidating TV stations into refusing to do business with WinState.

Hovde should know better. He’s a political candidate who has plenty of opportunities to counter the narrative pushed by his opposition. He’s got all the free speech he needs to accomplish this. It’s a shame he feels the best way to handle this is to deter the speech of others.

Filed Under: 1st amendment, advertising, defamation, eric hovde, free speech
Companies: evening telegram company, fox, gray media group, ion media, nexstar, scripps media, sinclair broadcasating, winsenate pac

from the beyond-clickbait-to-just-utter-nonsense dept

When tragedy strikes, it’s human nature to search for answers. But when you’re Fox News, it seems that the answer is always the same: blame video games, social media, or anything else that fits your preconceived notions, facts be damned.

In the aftermath of the assassination attempt on Donald Trump, I idly wondered how long it would take before someone tried to blame the shooting on social media, smartphones, or video games.

It took just slightly longer than I expected. On Thursday, ever reliable Fox News blasted this headline:

Trump shooter used gaming site that features presidential assassination game

And then they also mention, for good measure, that he “also had a Discord account.”

Image

Incredibly, it took two whole reporters to come up with this story.

And let’s be clear, almost the entire story is false, and the parts that aren’t false are stupid. This is some of the worst reporting I’ve seen in a while.

The “gaming site” in question was Steam. Anyone should know it has a ton of games. Listing the “Presidential assassination game” in the headline is basically an admission of just how dishonest Fox News is because five paragraphs into the article, they mention:

“there is no evidence Crooks ever played it.”

So what’s it doing in the fucking headline, Fox?

Also, it’s even worse than that because other reporters who actually understand what “reporting” means did the research and found out that the reported Steam account that some people claimed belonged to Crooks was fake. CBS reporters had that story:

A new analysis shows an online account that was believed to belong to the shooter in the assassination attempt on former President Donald Trump — and where he had purportedly called the date of the attack his “premiere” — was fake, a federal law enforcement official told CBS News on Thursday.

A law enforcement official and an additional source familiar with a briefing given to U.S. lawmakers on Wednesday previously told CBS News that the gunman, Thomas Matthew Crooks, had an account on an online gaming platform on which he posted: “July 13 will be my premiere.” But the federal law enforcement official says further investigation determined it was a fake account.

I saw some other reporting suggesting that the account on Steam was one where someone changed their username to pretend to be Crooks.

Watching the Fox News crowd get so desperate for anything to blame the shooting on is pretty pathetic. But I have no doubt that someone will bring this up in the future as if it were factual, and seeing the story morph to claim not just that he was on Steam, but that he played this supposed “Presidential assassin” game. Because facts no longer matter.

Filed Under: blame, blame video games, donald trump, steam, thomas crooks, video games
Companies: fox, fox news

Push To Strip Fox’s Broadcast License Over Election Lies Gains New Momentum

from the hey-at-least-we're-trying-something dept

Wed, Aug 30th 2023 03:30pm - Karl Bode

Last July, we noted how media reform activists had petitioned the FCC to revoke Fox News’ local broadcast license in Philadelphia. More specifically, the group argued that Fox News’ rampant election fraud propaganda technically violated the “character clause” embedded in the Communications Act the FCC is supposed to use to determine whether an organization should hold a broadcast license.

To be clear, a single Fox broadcast affiliate losing its license to broadcast in Philly wouldn’t have much of an impact on Fox’s ongoing efforts to spew GOP propaganda nationwide.

But, if successful, it might be replicable in other markets. Even if not, it serves a useful function in terms of activism and gaining media exposure for the need for some flavor of regulatory reform (like restoring popular, bipartisan media consolidation limits stripped away by the Trump FCC, media antitrust reform, or having the FCC actually use its authority to ensure economic and racial diversity ownership in media).

I remain unconvinced that the current Rosenworcel FCC has the political backbone to follow through on such a request. But interestingly enough, the FCC last week took the relatively rare step of opening up the petition to broader public comment, something requested by the original petitioners (the all volunteer-run Media and Democracy Project) but unsurprisingly opposed by Fox lawyers:

On July 18, MAD urged the FCC to change the status of the license renewal proceeding to allow more public participation because the issues raised in the petition “go beyond Fox’s day-to-day operation of WTXF-TV” and “address the broader question of whether Fox retains the basic qualifications to remain an FCC licensee.” Other public interest groups want to participate in the proceeding, MAD said.

Fox opposed that request, but the FCC announced that it will make the change in a notice issued yesterday.

MAD’s been doing a pretty good job of forming an alliance of folks backing broader public conversations on this. That includes numerous traditional Conservatives, several FCC staffers, and even numerous one-time Fox employees (like Preston Padden); who all agree that Fox’s obvious propaganda is proving to be violently harmful to democracy, the discourse, and the broader public good:

MAD’s call for an evidentiary hearing on the Fox renewal received additional support in a filing by conservative writer William Kristol, a former Fox News contributor; and Ervin Duggan, a Democrat who was an FCC commissioner in the early 1990s and later became president of PBS. The call for a hearing was also backed by Alfred Sikes, a Republican who was FCC Chairman from August 1989 to January 1993.

There’s obviously some concerns that this precedent could be abused in the future by Republicans to attack local broadcast news outlets critical of the GOP (not that there’s many of those left in the Sinclair Broadcasting era).

But I still doubt this gambit even gets to that point. FCC boss Jessica Rosenworcel generally has proven reluctant to even acknowledge that telecom monopolies exist and are harmful. The idea that she’d actively push to strip away a Fox broadcast license and wade hip deep into a political firestorm seems well out of character for a regulator who’s clearly not keen on meaningfully challenging corporate power.

Still, we may get an interesting hearing out of this mess that puts Fox’s malicious disinformation and the calls for reform on wider public display.

We inhabit an era where the question “what do we do about Fox News propaganda?” sees a real shortage of solutions that are both practical and don’t run afoul of the First Amendment. Everything in the conversation tends to steer toward what’s not possible. Or they involve unworkable gibberish like trying to bring back the Fairness Doctrine (which wouldn’t apply to cable TV anyway).

So I think it’s good that activists are trying something creative and new. I think it’s good to have a broader conversation about what can actually be done about authoritarian and right wing propaganda. I think it’s good to form new, bipartisan coalitions that finally recognize the harm in partisan propaganda masquerading as news. Because our efforts up to this point have consisted of either stoic tut-tutting about what’s not possible under the First Amendment, or half-baked incoherence.

Filed Under: broadcast, consolidation, disinformation, fcc, media, media and democracy project, propaganda
Companies: fox, wtxf-tv

More Media Execs Back Effort To Pull Fox News’ Philly Broadcast License Over Election Fraud Lies

from the disinformation-nation dept

Tue, Aug 1st 2023 03:37pm - Karl Bode

Last month we noted how media reform activists had petitioned the FCC to revoke Fox News’ local broadcast license in Philadelphia. More specifically, the group argued that Fox News’ rampant election fraud propaganda technically violated the “character clause” embedded in the Communications Act the FCC is supposed to use to determine whether an organization should hold a broadcast license.

As we noted at the time, this politically feckless FCC is never likely to act. Even if they did, it would only impact this singular Fox broadcast station (FOX 29 Philadelphia, WTXF-TV), and not meaningfully imperil Fox News’ broader mission to fill gullible peoples’ heads with hatred and pebbles.

Still, I’d argue it’s a worthwhile effort from a media campaign and public awareness perspective. So much of the conversation about “what to do about Fox News” (and the massive, deeply funded right wing propaganda apparatus more broadly) fixates exclusively on what’s not possible under the First Amendment. Rarely do you see much in the way of constructive ideas.

This group (the all volunteer-run Media and Democracy Project) is at least trying to be creative.

This week the effort got some additional support from former PBS President Ervin S. Duggan and former Weekly Standard Editor William Kristol (no stranger to political falsehoods himself), who filed a joint petition with the FCC in support of the effort:

“As media veterans, we are acutely aware of the power afforded to those who control the information broadcast on our nation’s airwaves,” said Ervin S. Duggan. “Rupert and Lachlan Murdoch’s role in perpetuating election falsehoods stands as a blatant violation of the character requirements expected of those the FCC entrusts to hold a broadcast license.”

Again though, this current Rosenworcel FCC is so politically feckless, it can’t even acknowledge that telecom monopolies are real and harmful things. It’s simply never going to wade into this kind of political shitstorm. And it’s not clear you’d want it to; a second term Trump FCC could easily exploit this precedent to take aim at broadcasters critical of the GOP (not that there are many of those left).

As we noted last time, there’s a long list of things we could be doing to counter right wing propaganda (education reform, public funding of journalism, improved mental health care, creative financing for independent journalism, tougher media consolidation standards, actually staffing the FCC with folks who care about media diversity), we’re just not interested in it. Yet.

The real threat to Fox News’ right now? It’s not the Dominion or Smartmatic suits. It’s the growing shift away from bloated, expensive cable TV bundles and towards streaming. Without the massive infusion of billions of dollars from cable TV customers who pay for Fox News in a bundle but never watch it, the propaganda mill’s financial future looks decidedly less certain.

Filed Under: disinformation, election fraud, fcc, philadelphia, propaganda, rupert murdoch, WTXF-TV
Companies: fox, fox news

Fox News Faces Headaches As Cord Cutting Kills Off Its Artificially Inflated Subscriber Totals

from the tick-tock dept

Thu, Jul 13th 2023 05:27am - Karl Bode

We just got done noting how there’s not much the federal government can do about right wing propaganda outlets like Fox News, given their protections under the First Amendment and the general limitations (both legally and courageously) at regulators like the FCC.

But there is one thing that’s likely to cause some serious trouble for Fox News’: the continuing rise of cord cutting. A huge chunk of Fox News’ revenues technically come from consumers that don’t actually watch the channel, but pay for it through traditional, dated cable TV channel bundles.

Of the 70 million or so traditional cable TV subscribers, only about 17 percent of those actually watch Fox. Despite very often not even being watched, Fox nabs $1.8 billion a year — about fifty percent more than it makes off of advertising — from simply having its channel in a cable lineup.

But there’s trouble in paradise. Cable TV cord cutting (ditching traditional cable bundles in favor of streaming or over the air broadcasts) set new records in the first quarter, with U.S. pay-TV subscriptions falling to their lowest level since 1992.

Between this, Fox News’ various defamation cases, the scandals caused by their former 8PM slot bigot and propagandist, and the erosion of market share at the hands of even shittier right wing propaganda channels (OANN, NewsMax), Wall Street investors are starting to get a bit nervous. Especially as “must watch” sports channels like ESPN more heavily embrace streaming:

“Fox News’s share of conservative news viewers is down to 84% from 94%. Cahall also noted that Fox gets 50% of its revenue from affiliate fees. He sees cord-cutting as reducing pay TV subscribers by 7% to 8% this year. He adds that if ESPN goes direct-to-consumer, cord-cutting could accelerate.”

As Cable TV continues to die, Fox News faces some significant hurdles. While outlets like OANN and Fox enjoy a ton of coverage regarding their influence, the vast majority of consumers really aren’t interested. The traditional, bloated, overpriced channel bundle has historically helped mask that fact, but as streaming choice expands, reality could provide a pretty ugly wake up call.

That still doesn’t fix the broader problem of right wing propaganda posing as news, but expanded consumer options will make it clear that most folks (especially younger Americans) genuinely don’t want to play racist conspiracy theory pseudo-news patty cake. With the party’s older voting blocks dying off, the Trump GOP will need to develop new ways to trick Americans into voting against their best interests.

Filed Under: cable bundles, cable news, cordcutting, fox news, propaganda, right wing, streaming, video
Companies: fox, fox news

Delaware Court Says Dominion Voting Systems Can Continue Suing Fox News For $1.6 Billion In Defamation

from the hope-the-charade-was-worth-it,-Fox dept

Another one of Dominion Voting Systems’ many, many lawsuits against Trump loyalists will be allowed to continue. (For a pretty comprehensive rundown of Dominion’s election-related defamation lawsuits, check out these comments by Techdirt reader RP.)

This particular lawsuit was filed in Delaware state court against Fox News Corporation, alleging that many of its hosts and commentators lied about Dominion’s voting machines and its owners during coverage following Donald Trump’s election loss. These false claims continued to be made by Fox News personalities like Lou Dobbs and Maria Bartiromo and amplified by guest commentators (who are also being sued by Dominion elsewhere) like former Trump lawyers Sidney Powell and Rudy Giuliani.

Fox moved to dismiss the lawsuit, claiming there was no defamation here, just a lot of protected speech. Fox’s defense is that repeated lies by hosts and guests were heated hyperbole and statements of opinion rather than defamation. Also, Fox contends it can’t be held responsible for statements made by its employees. From the decision [PDF]:

Fox argues that multiple constitutional doctrines protect Fox’s alleged defamatory speech. First, Fox contends that truthfully reporting newsworthy allegations made by a sitting president and his legal team on matters of public concern is not actionable. Second, Fox claims that the media is completely protected when reporting and commenting about allegations made in government proceedings. Third, Fox asserts that opinion and hyperbolic rhetoric about newsworthy allegations are constitutionally protected. Finally, Fox claims that none of the challenged individual statements identifies actionable defamation against Fox.

But, as the Delaware Superior Court points out in its refusal to toss the case, Fox News and its hosts were provided facts that contradicted on-air statements. And yet these statements continued unaltered, with Fox News playing up the “stolen election” angle to drive viewers to its broadcasts.

It’s that refusal to correct on-air statements that may end up costing Fox News a whole lot of money. Dominion is seeking $1.6 billion, citing the amount of money it has spent fighting months of false claims about its software and hardware, as well as contracts dropped by state officials who bought into the “stolen election” narrative.

The judge says repeating false claims when you have facts in hand can be defamatory. That’s called “actual malice” and it’s definitely actionable. And the reporting on the election and Dominion Voting Systems was far from neutral, undermining Fox’s “neutral reportage” defense.

The Court, reviewing the Complaint’s allegations, notes that it is reasonably conceivable that Fox’s reporting was inaccurate. As alleged, Dominion attempted to factually address Fox’s election fraud allegations. After Fox began connecting Dominion to election fraud claims, Dominion sent Fox executives and television anchors its “SETTING THE RECORD STRAIGHT” emails. Dominion’s emails, which contained analysis from election and related experts, tended to disprove the election fraud claims. Nevertheless, Fox and its news personnel continued to report Dominion purported connection to the election fraud claims without also reporting on Dominion’s emails. When Fox guests spread or reiterated disinformation about Dominion, Fox did not use the information Dominion provided to correct its guests or to reorient its viewers. Instead, Fox and its personnel pressed their view that considerable evidence connected Dominion to an illegal election fraud conspiracy.

In addition, the Court notes that it is reasonably conceivable that Fox was not dispassionate. Given that Fox apparently refused to report contrary evidence, including evidence from the Department of Justice, the Complaint’s allegations support the reasonable inference that Fox intended to keep Dominion’s side of the story out of the narrative. Moreover, the Complaint alleges numerous instances in which Fox personnel did not merely ask questions and parrot responses but, rather, endorsed or suggested answers. Fox therefore may have failed to report the issue truthfully or dispassionately by skewing questioning and approving responses in a way that fit or promoted a narrative in which Dominion committed election fraud.

This doesn’t necessarily mean the neutral reportage defense is completely undercut. But at this point — with Fox having yet to actually respond to the allegations in Dominion’s complaint — Fox can’t make this lawsuit disappear.

First, Fox argues it was not required to “defend” Dominion from Fox’s guest by reporting Dominion’s refutations. Still, Fox’s possession of evidence demonstrating the election fraud claims were untrue supports the reasonable inference that Fox made or published statements knowing they were false or with a reckless disregard for the truth. Fox may not ordinarily have a duty to defend the targets of allegations on which it is reporting; however, Fox must report on those allegations accurately and dispassionately under the neutral reportage defense. Second, Fox argues there are instances in which Fox was critical of the allegations against Dominion and in which Fox reported Dominion’s refutations. Fox may end up being right. This is the pleadings stage though and, at this stage, this argument raises factual issues the Court must resolve in Dominion’s favor. Fox will have the ability to develop this argument during discovery as the case proceeds.

The “fair reporting” privilege also does not apply. This covers “substantially true” coverage of court proceedings. Hardly anything asserted by Dominion to be defamatory fits this description.

The Court recognizes that most of the alleged statements were made before a lawsuit had been filed (e.g., the Powell allegations). As a result, most of the alleged statements, even if true, were not “of” a judicial proceeding. That alone is enough to preclude the fair report privilege. Fox counters with decisions that, according to Fox, hold the fair report privilege applies to “anticipated” or “forthcoming” lawsuits as well as pending proceedings. To the extent Fox argues its personnel were referring to pending election fraud cases filed throughout the nation, and investigations initiated by the federal government, the Complaint alleges facts that Fox’s personnel did not tailor their comments to the allegations in those proceedings. By consequence, the Court finds there is ambiguity, from the viewer’s perspective, as to whether Fox was reporting on those proceedings.

Hyperbole and opinion? Maybe that defense will work for Fox News once discovery is underway and all the facts can be closely examined. But for now, the court finds too many of the statements made by Fox News hosts possibly actionable to toss out the entire suit.

[T]he Court finds it is reasonably conceivable that Fox and its personnel broadcasted mixed opinions that were based on either false or incomplete facts unknown to the reasonable viewer. Many of Fox’s reporters made broad election fraud statements that did not disclose their sources clearly, or clearly connect their statements to the election fraud litigations. Although Fox classifies its reporters’ remarks as “commentary” that used “loose and hyperbolic rhetoric” for entertainment value, even loose and hyperbolic language can be actionable if it rests on false statements of fact undisclosed to viewers. Accordingly, the Complaint supports the reasonable inference that Fox made unprotected statements of fact that defamed Dominion.

It’s those “false statements of facts” that bring in the “actual malice” component of defamation law. The court says Dominion has alleged enough to move forward. Fox’s defense that some of its commentators and hosts contradicted claims of election fraud — perhaps assuming this would mean Fox News as a whole can’t be sued — works against it.

In addition, the Complaint alleges that several of Fox’s personnel openly disclaimed the fraud claims as false. Yet, certain Fox personnel (e.g., Mr. Dobbs) continued to push the fraud claims. The nearby presence of dissenting colleagues thus further suggests Fox, through personnel like Mr. Dobbs, was knowing or reckless in reporting the claims.

That’s not to say this won’t ultimately result in Fox News escaping this lawsuit. But from what the judge has seen so far, Fox definitely has an uphill battle. Fox execs should have known they were playing with litigation fire by allowing their hosts to traffic in false claims about Dominion voting machines — especially after the network was given evidence that directly contradicted these claims. But the network apparently felt the “stolen election” angle was for more profitable and more likely to retain viewers unwilling to believe their president was no longer their president.

As multiple lawsuits continue to work their way through the court system, high-profile Trump acolytes are going to discover that their election conspiracy theories are going to cost them far more than their reputations.

Filed Under: actual malice, defamation, e-voting, election, fair reporting, fox news, substantial truth
Companies: dominion voting, fox

Josh Hawley Thinks We Should Break Up Twitter Because He Doesn't Like The Company's Editorial Choices

from the you-fascist-karen dept

As I just made clear, I’m no fan of Twitter’s new “private media” policy, which I think comes from a well-meaning place, but will lead to widespread abuse by malicious actors seeking to hide evidence of bad behavior (indeed, there’s evidence this is already happening). But that’s no excuse for Senator Josh Hawley (supporter of the January 6th insurrection, and who seems to think his job as Senator from the confused state of Missouri is to product manage internet services). Hawley reacted to this new policy by saying that it’s a reason to break up Twitter. He says “we oughta break them up” at the end of a very bizarre interview with Fox News host Pete Hegseth.

We’ll get to the other nonsense from Hegseth and Hawley in a moment, but let’s start by focusing on the “we oughta break them up” line. First off, he’s clearly saying that the company needs to be broken up in response to the company’s editorial decisions. That’s… just a blatant violation of the 1st Amendment. Hell, just imagine how he (or Hegseth!) would respond to a Democratic Senator saying Fox should be “broken up” because of the company’s editorial bias. I imagine both Hawley and Hegseth would go nuts about such unconstitutional overreach. But here, Hawley suggests breaking up Twitter in response to its editorial choices, and Hegseth seems happy to support that position.

That’s because neither of them have any principles. They’re fine with ignoring the Constitution if it allows them to attack their perceived ideological enemies.

Second, under what possible theory would you “break Twitter up” here. Twitter is relatively small as a social media player. Reports from about a month ago show Twitter as the 15th largest social media service globally. Even in just the US, it appears that Twitter comes in at least 7th place and possibly lower, depending on WhatsApp and TikTok’s growth.

So the company, in no way, qualifies for any sort of antitrust treatment no matter how you look at it. The only possible reason to suggest that we should “break up” Twitter is because you disagree with their policies, which is a blatantly authoritarian position. Which, well, fits when we’re talking about Josh Hawley.

As for Hegseth, his little bit of pandering is ridiculous as well. After mispronouncing both the first and last name of Twitter’s new CEO, Parag Agrawal, he blames Agrawal for the new policy (that surely was planned much earlier). He then goes on a rant about how this policy is “meant to protect” antifa and Black Lives Matter protestors, but insists that it won’t be used to protect conservatives.

Of course, as we showed in our original post, nearly all of the examples of enforcement so far have gone the other way. The policy has been used to takedown images and videos of Trumpists and white nationalists who didn’t like being called out by others. But, never expect a Fox News host to let facts get in the way of winding up the ignorant base. Hegseth also fails to mention the fact that the policy doesn’t apply to public figures or newsworthy events — and names multiple public figures and newsworthy situations that he insists will be “censored” under the policy. Basically, pure disinformation.

He then says:

It gives the social media platform even more control, which is scary. More control over what can be shown. And more proof that they are, indeed, a publisher, and not simply (eyeroll) an unbiased platform.

Except basically all of that is bullshit. Twitter has always had control over what it does and does not allow on its platform. That’s how terms of service work. It’s no different from the fact that Fox News and Hegseth would never have me on Fox News to explain to his face why he’s an ignorant, pandering fool. Because that’s their editorial discretion. That’s the right of Fox News, just as it’s the right of Twitter. Hell, Twitter allows WAY MORE speech on its platform that its executives disagree with than Fox News ever has and ever will.

And to then trot out the bogus and meaningless “publisher” / “platform” distinction (and throwing in a gratuitous and meaningless “unbiased”) makes no sense. A publisher has 1st Amendment rights to choose what to host and what not to. And Twitter was never an “unbiased platform.” That’s just something that people made up to attack the company.

Hegseth then claims that Twitter will now use this to censor content “they don’t want you to see.” Which is… not at all how this works. He then brings on Hawley, who rambles on bizarrely and disconnected from reality. He insists that this won’t be used to “protect the privacy of conservatives,” which is nonsense. Again, all of the examples we’ve seen of content being taken down are examples of it being Hawley’s fans and supporters who are abusing this new policy to hide their own bad behavior. Hawley then flat out lies about how Twitter operates, claiming that Twitter “tracks us around the web” builds a “dossier” on us and “sells our information.” Twitter… doesn’t actually do that? None of these companies “sell our information.” They sell advertising, which is targeted based on our information but that’s very different. And while you could say that Google and Facebook “track us,” Twitter really doesn’t except in the most limited of ways.

This is just random rage from Hawley in which he throws in a bunch of catchy sayings that don’t actually apply to Twitter, because it riles up his ignorant base (the only kind of people who would ever support Hawley, apparently) and then calls for the company to be broken up. It’s cynical, hypocritical and disgusting — or basically a Josh Hawley specialty.

Filed Under: 1st amendment, antitrust, content moderation, editorial choices, fox news, free speech, josh hawley, pete hegseth
Companies: fox, twitter

from the this-just-seems-blatantly-corrupt dept

Late last year, we wrote about how bizarre it was that Senator Thom Tillis was trying to force through a felony streaming bill by attaching it to an end-of-the-year appropriations bill. There were so so many problems with this both in terms of what the bill would do, and in the procedural way it was done. First, Tillis got it attached to the “must pass” appropriations bill before he’d even introduced it. That meant that there was no debate and no direct votes on his bill.

You can kinda maybe (but not really?) see where that might make sense for uncontroversial bills, but the felony streaming bill… was not that. Long time readers of Techdirt will know that Hollywood has been pushing for a felony streaming bill for over a decade, and it was originally set to be attached to the infamous SOPA/PIPA bill until the internet rose up and made it clear that it would not accept Congress passing such a dangerous bill. Given that, you’d think that any one who had an honest reason for pushing such a bill would open it up to debate, rather than hide it away in a giant bill. That should give you one giant hint as to why Tillis pushed it the way that he did.

Second, there have been multiple reports about just how much Hollywood has invested in Senator Tillis. And we’ve heard from multiple people now that Tillis bristles at the idea that he’s somehow owned and operated by Hollywood lobbyists. Of course, it would help if he didn’t repeat their talking points at every turn, and turn around and introduce massive copyright reform that was basically an early Christmas gift for Hollywood.

But if Tillis wants to claim that he’s not just doing Hollywood’s billing, you’d think he would not have allowed this to happen. His chief staffer working on these copyright bills, Brad Watts, teamed up with Fox’s chief DC lobbyist, Gail Slater, to write an article patting each other on the back for getting the felony streaming bill passed.

I’ve spoken to multiple DC policy folks both inside and outside of Congress and literally none can think of any other example when a Congressional staffer and a top corporate lobbyist teamed up to write an op-ed together. It’s literally unprecedented. More than one person I spoke to expressed complete bewilderment that this op-ed even came to be. “How did no one in Tillis’ office not realize that this was a bad idea?” was the quote a staffer in another Senate office told me. “It’s shocking.”

But even worse than this out-and-out admission that Tillis does what Hollywood asks him to do, is the content of this article, which is not just revisionist history, but actually celebrates the sneaky way in which Watts (and apparently Slater!) helped sneak this bill through.

Some public policy issues are solutions in search of a problem, but unlawful streaming of copyrighted content is emphatically not one of those issues. U.S. Senators Thom Tillis (R-N.C.) and Patrick Leahy?s (D-Vt.) Protecting Lawful Streaming Act of 2020 (PLSA) became law in December 2020 as part of the Consolidated Appropriations Act, 2021. The importance of this law cannot be overstated. Not only did the PLSA modernize criminal copyright law in a long-overdue and positive direction, but it may also signal a new model for legislating digital copyright law going forward.

First of all, I call bullshit that this was “long overdue,” or that “the importance cannot be overstated.” The article notes, rightly, that legal streaming has become more common, but takes it on faith that “illegal streaming” somehow “costs the U.S. economy nearly $30 billion per year.” Their support for that is… a link to a CNN article quoting Tillis. So, Tillis’s staffer, who is in charge of all of his copyright efforts, is quoting his boss giving a citation that this same staffer almost certainly told his boss to say in the first place. Nifty.

The COVID-19 pandemic further exacerbated the harm from unlawful streaming as worldwide lockdowns led to a surge in online streaming. Not surprisingly, this surge in streaming included an aggressive uptick in unlawful streaming. According to analytics firm Muso, the unlawful streaming of films alone increased by 33 percent globally during lockdowns. The rise was even higher in the United States at an eye-popping 41 percent increase in unlawful streaming during lockdowns.

I mean, I don’t want to make too many assumptions here, but maybe (just maybe) the reason for the uptick in illegal streaming was because millions of people lost their jobs, had no money because Senator Thom Tillis tried to block stimulus packages, and are stuck at home because there’s a global freaking pandemic going on. So, maybe it’s not like those people have the spare cash to sign up for authorized streaming services at this moment, and it’s not exactly a priority given everything else going on.

The article goes on to falsely claim that streaming not being a felony was “a loophole.” It was not. As was discussed when this first came up a decade ago, there were legitimate reasons why Congress chose not to make infringing streaming a felony offense. Indeed, there are strong arguments that copyright should solely be a civil offense, and never a criminal one. Making it criminal basically is making US law enforcement the private tort enforcer for Hollywood, which represents a massive subsidy to those industries, such that they no longer have to get their own hands dirty (or spend their own money) on taking infringers to court.

Then, the article engages in some incredibly historical revisionism regarding the original attempt at making streaming a felony, and what happened with SOPA/PIPA.

Despite careful crafting by the legislation?s sponsors, PIPA and SOPA were met with opposition from a range of legitimate stakeholders representing internet and consumer equities. Their advocacy against PIPA/SOPA culminated in over 5 thousand petitions per minute to the U.S. Congress, about 4 million tweets on the legislation, and petitions submitted to Congress containing 8 million signatures.

Concerns about the felony streaming provisions in PIPA/SOPA centered on the perception that, as drafted, it could lead to criminal prosecution of individual artists who regularly used platforms such as YouTube to upload their performances.

Ultimately, the sheer intensity of the opposition to PIPA/SOPA culminated in the legislation being withdrawn from consideration. This opposition took creative content industries and legislators by surprise and resulted in an unwillingness, for many years, to address what was perceived as such a controversial, complicated, and even unfixable issue.

I mean, just the very idea that SOPA/PIPA were crafted “carefully” is laughable for anyone who knows the real story, in which Lamar Smith did a Leroy Jenkins move, yanking the bill away from Rep. Bob Goodlatte (who had tried to write a more carefully constructed bill) and lit it up like a Tillis-style Christmas tree for Hollywood.

Then there’s this fun bit of nonsense:

So, What Changed? Why Now? In the years since PIPA/SOPA, the entire internet and digital copyright ecosystem has changed. Simultaneously, traditional lines dividing content creator industries and tech-heavy startups have blurred, creating more shared interests and equities. Several internet platforms have evolved their business models and are now original content creators themselves.

No, what changed this time was that you refused to introduce it through the normal process, kept it hidden until after it was already lumped into the must pass appropriations bill that was being debated contentiously for other reasons between Congress and a lame duck President in the middle of a pandemic (and an insane propaganda campaign to undermine the results of an election). That’s what changed.

Senator Tillis and Leahy?s bill evaded the criticisms that the felony streaming provision in PIPA/SOPA received and does not capture individual internet users or legitimate businesses and content creators, including, likely to some people?s disappointment, Justin Bieber.

Members of Congress and copyright stakeholders across the board were invited to the negotiating table on an equal footing. Negotiations proceeded in good faith and no stone was left unturned as stakeholders gamed out the real-world implications of the draft legislative text.

No, this is not what happened. At all. I spoke to stakeholders from consumer rights groups and internet platforms, and they said that they were just as blindsided by this bill as we were. Again, if this was all about getting all the stakeholders together and coming up with a workable bill for everyone why didn’t Tillis just release it as normal? Why did he get it stuffed into the appropriations bill, and not even release the text of the bill until it was clear that there would never be an up-and-down vote on the bill itself?

And that’s also why this bill “evaded criticism.” Because it was done in a way and at a time when so much other stuff was going on.

That’s only underlined by the fact that Tillis’ top copyright staffer felt he could reveal “the sausage making process” in combination with one of Hollywood’s top lobbyists, without anyone blinking an eye. The fix was in, and that fix sure looks corrupt. At the very least, this is the kind of “soft corruption” that we’ve talked about before. Even if everything was legitimate, just the fact that Watts and Slater know they can co-author an article about how they got this controversial bill approved gives the public the impression of corruption, and supports the idea that Tillis is completely in the tank for Hollywood.

It damages public trust in government, as it underlines the idea that Senators like Tillis are there to serve the desires of their funders, and not the public he was elected to represent.

Filed Under: appropriations, brad watts, copyright, felony streaming, gail slater, pipa, sopa, streaming, thom tillis
Companies: fox

Smartmatic Sues Two Trump Lawyers And Three Fox News Hosts For $2.7 Billion-Worth Of Defamation

from the putting-a-price-tag-on-months-of-dipshittery dept

Another day, another multi-billion dollar defamation lawsuit. And like the other lawsuits filed over frothy falsehoods that emerged from the spittle-flecked lips of Trump lawyers and supporters, this one also targets people who definitely should have known better than to engage in the speech they did.

Smartmatic — a voting tech company whose name was dragged into the mud by a number of Fox News personalities and Trump legal team members — is suing three Fox News hosts and two lawyers. Media members and lawyers should definitely know how to stay away from engaging in alleged libel. But everyone sued here (Rudy Giuliani, Sidney Powell, Lou Dobbs, Maria Bartiromo, and Jeanine Pirro) abandoned their better instincts to wallow in the lowest-common-denominator toxicity that exemplified Trump’s response to losing a national election.

And Smartmatic had hardly anything to do with the national election. While Dominion Voting Systems — another post-election libel litigant — is in use in nearly half the nation, Smartmatic’s software was used in one single county in the US during the 2020 election.

But conspiracy theorists gotta theorize. So this group of morons in hurry to curry favor with Trump amplified a bizarre claim that Smartmatic was a tool of deceased Venezuelan dictator Hugo Chavez. In reality, Smartmatic is an American company founded by two Venezuelans. Its software was used by the Venezuelan government, but there’s absolutely no evidence the company itself engaged in any voter fraud, vote switching, or anything other illegal behavior Hugo Chavez’s government participated in.

The company’s 285-page(!) lawsuit [PDF] lays down the facts. A lot of the lawsuit’s runtime is given over to recounting the lies told by the two Trump lawyers and three Fox News hosts. Because the lying has been pretty much nonstop since last November, the filing is necessarily lengthy. Much of it highlights statements that were delivered by the defendants that made it clear they were stating facts, rather than simply offering their opinion on perceived election irregularities.

It also points out a long list of facts that would have been verifiable if any of the defendants had felt the slightest inkling to engage in the truth for a change.

Smartmatic’s election technology and software were not widely used in the 2020 U.S. election. They were only used in Los Angeles County.

Smartmatic’s election technology and software were not used by Dominion during the 2020 U.S. election. The companies are competitors.

Smartmatic’s election technology and software were not used to steal the 2020 U.S. election. Nor could they have been, given that Smartmatic’s role was limited to Los Angeles County.

Smartmatic’s election technology and software did not send votes to foreign countries for tabulation and manipulation during the 2020 U.S. election. The votes were tabulated in Los Angeles County.

Smartmatic’s election technology and software were not compromised and hacked during the 2020 U.S. election. No one has identified a shred of evidence that there were cyber-security issues in Los Angeles County.

Smartmatic has not been banned from being used in U.S. elections. Other election technology companies may have been banned but not Smartmatic.

Smartmatic is not a Venezuelan company and was not founded and funded by corrupt dictators from socialist and communist countries. Smartmatic USA Corp is based in Florida, and its parent company is based in the United Kingdom. No dictators – corrupt or otherwise, from communist/socialist countries or otherwise – were involved in founding or funding the company. Smartmatic’s election technology and software were not designed to rig and fix elections.

Smartmatic’s election technology and software were designed for security, reliability, and auditability. No after-the-fact audit has ever found that Smartmatic’s technology or software were used to rig, fix, or steal an election.

At the end of all of this, there’s a $2.7 billion damage demand. This is mostly performative and Smartmatic still has an uphill battle. Truth is the best defense against libel claims but none of these defendants have that option. But they can still bat away this lawsuit by showing the court no one really takes them seriously as pontificators or legal advisors. Admitting they’re nothing more than idiots in the entertainment business might be tough on their egos but it’s far less expensive than being forced to admit they knew they were lying or, at best, unwilling to vet any of these wild-ass claims before airing them publicly.

Filed Under: defamation, election fraud, fox news, jeanine pirro, lou dobbs, maria baritromo, rudy giuliani, sidney powell, voting
Companies: fox

The Simpsons Shows Precisely How One Should Handle Derivative Homage Works

from the okilly-dokilly dept

When it comes to derivative works, copyright in America has a long and storied history of stifling new and creative expression in favor of control by some ultimately-creative original author. Frankly, the section of copyright law that gives authors of content control over derivative works never made much sense to me. Or, at least, it appears to be a wholesale contradiction of the idea/expression dichotomy that is also supposed to exist in copyright law. Still, we’ve seen all kinds of fallout from the derivative works section of the law spill over into the real world, from laughable attempts by musical artists to control short phrases to derivatives building off of the original author’s secondary work. The point is that the general consensus among most creators appears to be that derivative works outside of the author’s control are the enemy and should be beaten down by any means necessary.

The counterexample to that, however, is how the folks behind The Simpsons decided to handle one of the oddest musical acts I’ve ever come across. Think I’m exaggerating? It’s a Ned Flanders homage using a death metal band as a vehicle to deliver “Flanderisms” via lyrics in what the band has termed “Nedal music.”

The idea for Okilly Dokilly came from a conversation between Head Ned and the group’s original drummer, Bled Ned, who were trying to imagine the most ill-fitting name for a death metal band. After hitting upon Okilly Dokilly, the duo continued to spin the joke out: What if the frontman was dressed like Ned Flanders, what if everyone dressed like Ned Flanders, what if it was a “Nedal band” not a “metal band,” what if all the lyrics were Flanders quotes. The dream began to materialize when Head Ned realized they not only had access to a pink Flying V guitar, but his job at a clothing company allowed him to buy green sweaters in bulk.

When it comes to writing songs, Head Ned says a Flanders quote must fit one of two criteria: It either has to sound super dark and metal out of context (“Nothing At All,” “Claw My Eyes Out”) or so silly it has no place in a metal song (“Godspeed Little Doodle,” “I Can’t, It’s a Geo”). When the band set out to make their second album, Howdilly Twodilly, released last month, Head Ned took on the enviable task of re-watching the first 10 seasons of The Simpsons and jotting down the best lines in a notebook.

So…yeah. Now, this is all very clearly a derivative work of the original The Simpsons creation. Ned Flanders isn’t just a character on the show; he’s one of the most iconic characters on it. Building an entire musical concept around that character, that character’s look and clothing, not to mention making lines he speaks in the show the principle lyrical device for all of the songs, is both creative and obviously stems from the original work. While Okilly Dokilly isn’t getting radio play on the pop channels, they are playing shows around the country and even in the UK. Their touring van is, of course, named “Ned Vanders.”

In fact, it was while they were touring in the UK that Head Ned got an email from one of the writers on The Simpsons and naturally thought they were all in deep shit.

Head Ned remembers waking up one morning in the band’s van — obviously nicknamed “Ned Vanders” — to an e-mail from Simpsons producer Richard K. Chung, who said the show was interested in running the “White Wine Spritzer” video (at the time, this was the band’s only music video; more recently they shared a clip for Howdilly Twodilly’s “Reneducation”). When the band asked how The Simpsons team had discovered them, Head Ned says they were told Al Jean came across their work via a Google alert.

“We’ve always operated as an homage to the show,” Head Ned says. “It’s great to be on the frontline of these tiny Simpsons fans conventions across the U.S. We’ve never tried to do anything as a deterrent to the show, but you’re never sure how the legality of everything works. But the fact that they contacted us and it wasn’t anything where they wanted us to stop and go home was very, very cool.”

Rather than trying to shut them down, the people from the Simpsons wanted to feature the band’s work in the credits of an episode. Suddenly, the band that was an homage to a secondary character on The Simpsons had become featured on the show. You can see what this all looked like in the video below.

Something of a stark contrast to every creative person or group out there who slapped down every homage or derivative work just because it was a commercial project, huh? Not to mention how many fan-made works out there were created purely out of love for the original work.

The real question is why can’t more creators act like this?

Filed Under: copyright, derivative works, embracing fans, fans, ned flanders, nedal music, okilly dokilly, the simpsons
Companies: fox