endorsements – Techdirt (original) (raw)

Dear Jeff Bezos: The ‘Hard Truth’ Is That Cowardice Like Yours Is Why People Don’t Trust The Media

from the does-being-a-billionaire-kill-brain-cells? dept

Hey Jeff,

Since I know you’ll never actually read this, I figured the best way to set this up as an open letter. One that you should read, but never will.

It appears that your stupendously cowardly decision to block the Washington Post from publishing its planned endorsement of Kamala Harris just days before the election is not working out quite the way you hoped. While it’s pretty common for people to claim they’re canceling a subscription whenever a newspaper does something bad, this time it appears they are actually doing so. In droves. Oops!

Reports note that over 200,000 subscriptions have been cancelled, or around 8% of your subscribers, since the news came out on Friday (coming via the publisher rather than you directly). And it sounds like more cancellations are coming in:

More than 200,000 people had canceled their digital subscriptions by midday Monday, according to two people at the paper with knowledge of internal matters. Not all cancellations take effect immediately. Still, the figure represents about 8% of the paper’s paid circulation of roughly 2.5 million subscribers, which includes print as well. The number of cancellations continued to grow Monday afternoon.

Last night, I saw you took to the pages of the newspaper whose credibility you just destroyed to give a sanitized explanation for this decision.

All I can say is, Jeff, fire whichever lackey wrote this. They’re terrible.

Let’s be clear: there are plenty of good reasons not to do endorsements. At Techdirt, we don’t do endorsements. There’s no requirement to do endorsements. And, honestly, in many cases, endorsements for things like President are kinda silly. I get that part.

But this isn’t actually about the decision not to publish an endorsement. The real issue is you stepping in as owner to block the endorsement at the perfect time to show that you capitulated in advance to an authoritarian bully who has attacked your business interests in the past and has indicated he has a plan to exact revenge on all who wronged him.

The principled response to such threats is to continue doing good journalism and not back down. The cowardly shit is to suddenly come up with an excuse for not publishing an endorsement that had already been planned.

Your explanation gets everything backwards.

In the annual public surveys about trust and reputation, journalists and the media have regularly fallen near the very bottom, often just above Congress. But in this year’s Gallup poll, we have managed to fall below Congress. Our profession is now the least trusted of all. Something we are doing is clearly not working.

It’s true. The mainstream media is not trusted. You want to know why? Because time and time again the media shows that it is unfit to cover the world we live in. It pulls punches. It equivocates. It sanewashes authoritarian madness. All of that burns trust.

As does a billionaire owner stepping in to block an already written opinion piece.

That is why people are canceling. You just destroyed their trust.

This is particularly stupid at this moment because trust is at an all-time low, as you note. But the ones who already trust the Washington Post to tell them what’s up in this moment of uncertainty are subscribers to your newspaper. And they’re now leaving in droves.

Because you destroyed their trust.

It’s one thing to win people’s trust. You’ve destroyed trust that people already had in the Washington Post.

One reason why credibility is so low is because it’s believed that the wealthy elite billionaires “control” the news and push their personal beliefs. Jeff, you know what helps reinforce that belief? You, the billionaire, elite owner of the Washington Post, stepping in to overrule your editorial team on a political endorsement in a manner that suggests that you wish to put your thumb on the scale in order to maintain more control.

Then your piece gets worse.

Let me give an analogy. Voting machines must meet two requirements. They must count the vote accurately, and people must believe they count the vote accurately. The second requirement is distinct from and just as important as the first.

Likewise with newspapers. We must be accurate, and we must be believed to be accurate. It’s a bitter pill to swallow, but we are failing on the second requirement. Most people believe the media is biased. Anyone who doesn’t see this is paying scant attention to reality, and those who fight reality lose. Reality is an undefeated champion. It would be easy to blame others for our long and continuing fall in credibility (and, therefore, decline in impact), but a victim mentality will not help. Complaining is not a strategy. We must work harder to control what we can control to increase our credibility.

This is exactly correct in isolation. Of course newspapers must increase their credibility.

You know how a newspaper does that? By not having its billionaire owner step in and tell its editorial team not to publish an endorsement days before an election in a manner that makes it look like you’re willing to interfere in their editorial choices to curry favor with politicians.

You literally did the exact opposite of what you claim you’re trying to do.

And for what? Do you think that MAGA folks are suddenly going to come rushing to subscribe to the Washington Post now? Do you think this built up your credibility with a crew of folks who have made it clear they only wish to surround themselves with propaganda and bullshit? Is that who you want credibility with? If so, hire a propagandist and fire your journalists.

Those people are never going to “trust” you, because they are looking for confirmation bias. And if the truth goes against what they want, they’ll refuse to trust you.

Do you think this will make Donald Trump leave you alone? Have you never read a single history book that Amazon sells? Trump will see your capitulation as a sign of weakness. He sees it as a sign that he can squeeze you for more and more, and that you’ll give. Because rather than stand up for truth, you caved. Like a coward.

Presidential endorsements do nothing to tip the scales of an election. No undecided voters in Pennsylvania are going to say, “I’m going with Newspaper A’s endorsement.” None.

Even if this is true, you should have made this decision clear a year or two ago and given your reasons then, instead of stepping in a week before the election, destroying all credibility, interfering with the editorial independence of your newspaper and looking like a simp for Trump. And, even worse, announcing it without an explanation until this hastily penned joke of an attempt at justification.

If you want to build up more credibility and trust in news, that’s great. But you did the opposite.

Lack of credibility isn’t unique to The Post. Our brethren newspapers have the same issue. And it’s a problem not only for media, but also for the nation. Many people are turning to off-the-cuff podcasts, inaccurate social media posts and other unverified news sources, which can quickly spread misinformation and deepen divisions.

And you think the best way to correct that is for a billionaire owner to step in and overrule the editorial team?

While I do not and will not push my personal interest, I will also not allow this paper to stay on autopilot and fade into irrelevance — overtaken by unresearched podcasts and social media barbs — not without a fight. It’s too important. The stakes are too high. Now more than ever the world needs a credible, trusted, independent voice, and where better for that voice to originate than the capital city of the most important country in the world?

And you will do that by pushing my personal interest and blocking the editorial team, allowing them to be overtaken in credibility by podcasts and social media barbs?

Also, “not without a fight?”

Dude, you just forfeited the fucking fight. The stakes are high, and you just told your newspaper, “Sit this one out, folks.”

You took yourself out of the fight.

Yes, the world needs a credible, trusted, independent voice. You just proved that the Washington Post cannot be that voice, because it has a billionaire owner willing to step in, destroy that credibility and trust, and make it clear to the world that its editorial team has no independence.

The Washington Post has some amazing journalists, and you just undermined them.

For what?

Absolutely nothing.

Filed Under: credibility, endorsements, jeff bezos, journalism, trust
Companies: washington post

How The Cowardice Of The LA Times And Washington Post Highlights The Danger Of The Link Taxes They Demand, And Their Hypocrisy

from the we-won’t-and-we’ll-make-it-so-you-can’t-either dept

As Mike and others have pointed out, the Los Angeles Times and Washington Post have utterly failed the public. While it is of course their right to endorse, or not endorse, anyone they choose, the refusal to provide any such endorsement in an election with such high stakes abandons the important role the press plays in helping ensure that the electorate is as informed as it needs to be to make its self-governance choices. They join the outlets like the New York Times, CNN, the Wall Street Journal, and others who have also pulled their punches in headlines and articles about the racist threats being made in the course of the presidential campaign, or inaccurately paint a false coherence between the candidates in their headlines and articles, and in doing so kept the public from understanding what is at stake. The First Amendment protects the press so that it can be free to perform that critical role of informing the public of what it needs to know. A press that instead chooses to be silent is of no more use than a press that can’t speak.

The issue here is not that the LA Times and Washington Post could not muster opinions (in fact, one could argue that its silence is actually expressing one). The issue is more how they’ve mischaracterized endorsements as some sort of superfluous expression of preference and not a meaningful synthesis of the crucial reporting it has done. In other words, despite their protests, the endorsement is supposed to be reporting, a handy packaging of its coverage for readers to conveniently review before voting.

If it turns out that the publication can draw a conclusion no better than a low-information voter, when it, as press, should have the most information of all, then it can no longer be trusted as a useful source of it. While both the LA Times and Washington Post have still produced some helpful political reporting, their editorial reluctance to embrace their own coverage makes one wonder what else they have held back that the public really needed to know about before heading to the ballot box. Especially when it seems the Times in particular also nixed the week-long series of Trump-focused articles it had been planning, which would have culminated in the editorial against him – the absence of that reporting too raises the strong suspicion that other relevant reporting has also been suppressed.

This crucial educative role that the press plays to inform public discourse so necessary for democracy to successfully function is now going unserved by the publications who have now abdicated that important job. Which is, of course, their choice: it is their choice in whether and how to exercise the editorial discretion of what to cover and what to conclude. The press freedom the First Amendment protects includes the freedom to be absolutely awful in one’s reporting decisions. No law could constitutionally demand anything otherwise and still leave that essential press freedom intact.

But if these incumbent outlets are not going to do it, then someone else will need to. The problem we are faced with is that not only are these publications refusing to play this critical democracy-defending role, but they are also actively trying to prevent anyone else from doing it. Because that’s the upshot to all the “link taxes” they and organizations they support keep lobbying for.

As we’ve discussed many times, link taxes destroy journalism by making that journalism much more difficult to find. The link sharing people are now able to freely do on social media and such would now require permission, which would necessarily deter it. The idea behind link taxes it would raise revenue if people had to pay for the permission needed to link to their articles. But all such a law would be sure to do is cut media outlets off from their audiences by deliberately cutting off a main way they get linked to them.

While the goal of the policy, to support journalism, may be noble, the intention cannot redeem such a counterproductive policy when its inevitable effect will be the exact opposite. It is, in short, a dumb idea. But if link taxes are imposed it will be a dumb idea everyone has to live with, no matter how much it hurts them. And it will hurt plenty. Because even if it manages to generate some money, the only outlets likely to ever see any of it would be the big incumbents – the same ones currently failing us. Smaller outlets, by being smaller, would be unlikely to benefit – compulsory licensing schemes such as this one rarely return much to the longtail of supposed “beneficiaries.” Yet for those smaller outlets keen to build audiences and then monetize that attention in ways most appropriate for it, these link tax schemes will be crippling obstacles, preventing their work from even getting seen and leaving them now without either revenue or audience. Which will make it impossible for them to survive and carry the reporting baton that the larger outlets have now dropped. Which therefore means that the public will still have to go without the reporting it needs, because the bigger outlets aren’t doing it and the smaller ones now can’t.

Laws that impose regulatory schemes like these are of dubious constitutionality, especially in how they directly interfere with the operation of the press by suppressing these smaller outlets. But what is perhaps most alarming here is the utter hypocrisy of these incumbent outlets to claim link taxes are needed to “save” journalism while not actually doing the journalism that needs saving, yet demanding a regulatory scheme that would effectively silence anyone interested in doing better.

If they wonder why journalism is struggling, then the thing they need to do is look in the mirror. The way to save journalism is to actually practice journalism. No link tax is going to make the LA Times or Washington Post play the role they have chosen not to play anymore. But they will make it so that no one else can play it either. And that’s no way to save journalism; that’s how you kill it for good.

And with it the democracy that depends on it.

Filed Under: cjpa, endorsements, jcpa, journalism, link taxes, politics
Companies: la times, washington post

Democracy Dies In Darkness… Helped Along By Billionaire Cowardice

from the bezos-turning-off-the-light dept

Newspaper presidential endorsements may not actually matter that much, but billionaire media owners blocking editorial teams from publishing their endorsements out of concern over potential retaliation from a future Donald Trump presidency should matter a lot.

If people were legitimately worried about the “weaponization of government” and the idea that companies might silence speech over threats from the White House, what has happened over the past few days should raise alarm bells. But somehow I doubt we’ll be seeing the folks who were screaming bloody murder over the nothingburger that was the Murthy lawsuit saying a word of concern about billionaire media owners stifling the speech of their editorial boards to curry favor with Donald Trump.

In 2017, the Washington Post changed its official slogan to “Democracy Dies in Darkness.”

The phrase was apparently a favorite of Bob Woodward, who was one of the main reporters who broke the Watergate story decades ago. Lots of people criticized the slogan at the time (and have continued to do so since then), but no more so than today, as Jeff Bezos apparently stepped in to block the newspaper from endorsing Kamala Harris for President.

An endorsement of Harris had been drafted by Post editorial page staffers but had yet to be published, according to two people who were briefed on the sequence of events and who spoke on the condition of anonymity because they were not authorized to speak publicly. The decision to no longer publish presidential endorsements was made by The Post’s owner, Amazon founder Jeff Bezos, according to the same two people.

This comes just days after a similar situation with the LA Times, whose billionaire owner, Patrick Soon-Shiong, similarly blocked the editorial board from publishing its planned endorsement of Harris. Soon-Shiong tried to “clarify” by claiming he had asked the team to instead publish something looking at the pros and cons of each candidate. However, as members of the editorial board noted in response, that’s what you’d expect the newsroom to do. The editorial board is literally supposed to express its opinion.

In the wake of that decision, at least three members of the LA Times editorial board have resigned. Mariel Garza quit almost immediately, and Robert Greene and Karin Klein followed a day later. As of this writing, it appears at least one person, editor-at-large Robert Kagan, has resigned from the Washington Post.

Or, as the Missing The Point account on Bluesky noted, perhaps the Washington Post is changing its slogan to “Hello Darkness My Old Friend”:

Marty Baron, who had been the Executive Editor of the Washington Post when it chose “Democracy Dies in Darkness” as a slogan, called Bezos’ decision out as “cowardice” and warned that Trump would see this as a victory of his intimidation techniques, and it would embolden him:

The thing is, for all the talk over the past decade or so about “free speech” and “the weaponization of government,” this sure looks like these two billionaires suppressing speech from their organizations over fear of how Trump will react, should he be elected.

During his last term, Donald Trump famously targeted Amazon in retaliation for coverage he didn’t like from the Washington Post. His anger at WaPo coverage caused him to ask the Postmaster General to double Amazon’s postage rates. Trump also told his Secretary of Defense James Mattis to “screw Amazon” and to kill a $10 billion cloud computing deal the Pentagon had lined up.

For all the (misleading) talk about the Biden administration putting pressure on tech companies, what Trump did there seemed like legitimate First Amendment violations. He punished Amazon for speech he didn’t like. It’s funny how all the “weaponization of the government” people never made a peep about any of that.

As for Soon-Shiong, it’s been said that he angled for a cabinet-level “health care czar” position in the last Trump administration, so perhaps he’s hoping to increase his chances this time around.

In both cases, though, this sure looks like Trump’s past retaliations and direct promises of future retaliation against all who have challenged him are having a very clear censorial impact. In the last few months Trump has been pretty explicit that, should he win, he intends to punish media properties that reported on him in ways he dislikes. These are all reasons why anyone who believes in free speech should be speaking out about the dangers of Donald Trump towards our most cherished First Amendment rights.

Especially those in the media.

Bezos and Soon-Shiong are acting like cowards. Rather than standing up and doing what’s right, they’re pre-caving, before the election has even happened. It’s weak and pathetic, and Trump will see it (accurately) to mean that he can continue to walk all over them, and continue to get the media to pull punches by threatening retaliation.

If democracy dies in darkness, it’s because Bezos and Soon-Shiong helped turn off the light they were carrying.

Filed Under: censorship, cowardice, donald trump, endorsements, free speech, jeff bezos, journalism, kamala harris, patrick soon-shiong, presidential endorsements
Companies: amazon, la times, washington post

Dear Taylor Swift: There Are Better Ways To Respond To Trump’s AI Images Of You Than A Lawsuit

from the karma dept

We’ve written a ton about Taylor Swift’s various adventures in intellectual property law and the wider internet. Given her sheer popularity and presence in pop culture, that isn’t itself particularly surprising. What has been somewhat interesting about her as a Techdirt subject, though, has been how she has straddled the line between being a victim of overly aggressive intellectual property enforcement as well as being a perpetrator of the same. All of this is to say that Swift is not a stranger to negative outcomes in the digital realm, nor is she a stranger to being the legal aggressor.

Which is why the point of this post is to be something of an open letter to Her Swiftness to not listen to roughly half the internet that is clamoring for her to sue Donald Trump for sharing some AI-generated images on social media falsely implying that Swift had endorsed him. First, the facts.

Taylor Swift has yet to endorse any presidential candidate this election cycle. But former President Donald Trump says he accepts the superstar’s non-existent endorsement.

Trump posted “I accept!” on his Truth Social account, along with a carousel of (Swift) images – at least some of which appear to be AI-generated.

One of the AI-manipulated photos depicts Swift as Uncle Sam with the text, “Taylor wants you to vote for Donald Trump.” The other photos depict fans of Swift wearing “Swifties for Trump” T-shirts.

As the quote notes, not all of the images were AI generated “fakes.” At least one of them was from a very real woman, who is very much a Swift fan, wearing a “Swifties for Trump” shirt. There is likewise a social media campaign for supporters from the other side of the aisle, too, “Swifties for Kamala”. None of that is really much of an issue, of course. But the images shared by Trump on Truth Social implied far more than a community of her fans that also like him. So much so, in fact, that he appeared to accept an endorsement that never was.

In case you didn’t notice, immediately below that top left picture is a label that clearly marks the article and associated images as “satire.” The image of Swift doing the Uncle Sam routine to recruit people to back Trump is also obviously not something that came directly from Swift or her people. In fact, while she has not endorsed a candidate in this election cycle (more on that in a moment), Swift endorsed Biden in 2020 with some particularly biting commentary around why she would not vote for Trump.

Now, Trump sharing misleading information on social media is about as newsworthy as the fact that the sun will set tonight. But it is worth noting that social media exploded in response, with a ton of people online advocating Swift to “get her legal team involved” or “sue Trump!” And that is something she absolutely should not do. Some outlets have even suggested that Swift should sue under Tennesse’s new ELVIS Act, which both prohibits the use of people’s voice or image without their authorization, and which has never been tested in court.

Trump’s post might be all it takes to give Swift’s team grounds to sue Trump under Tennessee’s Ensuring Likeness Voice and Image Security Act, or ELVIS Act. The law protects against “just about any unauthorized simulation of a person’s voice or appearance,” said Joseph Fishman, a law professor at Vanderbilt University.

“It doesn’t matter whether an image is generated by AI or not, and it also doesn’t matter whether people are actually confused by it or not,” Fishman said. “In fact, the image doesn’t even need to be fake — it could be a real photo, just so long as the person distributing it knows the subject of the photo hasn’t authorized the use.”

Please don’t do this. First, it probably won’t work. Suing via an untested law that is very likely to run afoul of First Amendment protections is a great way to waste money. Trump also didn’t create the images, presumably, and is merely sharing or re-truthing them. That’s going to make making him liable for them a challenge.

But the larger point here is that all Swift really has to do here is respond, if she chooses, with her own political endorsement or thoughts. It’s not as though she didn’t do so in the last election cycle. If she’s annoyed at what Trump did and wants to punish him, she can solve that with more speech: her own. Hell, there aren’t a ton of people out there who can command an audience that rivals Donald Trump’s… but she almost certainly can!

Just point out that what he shared was fake. Mention, if she wishes, that she voted against him last time. If she likes, she might want to endorse a different candidate. Or she can merely leave it with a biting denial, such as:

“The images Donald Trump shared implied that I have endorsed him. I have not. In fact, I didn’t authorize him to use my image in any way and request that he does not in the future. On the other hand, Donald Trump has a history of not minding much when it comes to getting a woman’s consent, so I won’t get my hopes up too much.”

Filed Under: 1st amendment, ai, deepfakes, donald trump, elvis act, endorsements, likeness rights, publicity rights, satire, taylor swift

Judge Makes It Official: Retweets Are Not Endorsements — But In A Strange Case

from the retweets-are-not-endorsements dept

Back in the spring of 2021, we wrote briefly about yet another Steven Biss SLAPP lawsuit. This one was filed by the brother of disgraced former National Security Advisor Michael Flynn, Jack Flynn, arguing that CNN defamed him by showing a video of both Flynns and other family members, repeating the QAnon slogan “where we go one, we go all” while implying that the Flynns were “followers” of QAnon. The CNN report barely mentioned the Flynns at all. It was a report about a QAnon gathering, but showed the clip, which the Flynns themselves had placed on social media. Jack Flynn, with Steven Biss as his lawyer, argued that this clip was defamatory.

The case has been contentious since then with papers flying back and forth, including CNN even trying to block Biss from being able to appear before the court at all:

Here, this Court should deny Mr. Biss’ application because he has a history of making bad faith allegations against defendants in defamation actions, including his conduct towards CNN. Just a few days ago, the United States District Court for the District of Maryland sanctioned Mr. Biss in the amount of 21,437.50inattorneys’feesand21,437.50 in attorneys’ fees and 21,437.50inattorneys’feesand52.26 in expenses because he “engaged in bad faith conduct in filing the last-minute Amended Complaint” against CNN.

The court allowed Biss to appear, and generally the case has mostly gone as many Biss’ cases seem to go: with lots of wacky claims from Biss that don’t survive much scrutiny. The magistrate judge assigned to the case issued a report recommending the Article III judge reject all of the claims, but deny CNN’s request for fees.

However, rather than accept all of the magistrate judge’s recommendations, the judge (somewhat generously, I’d argue) allowed a false light claim to stick around, arguing at this stage of the process (the motion to dismiss stage), the court needed to accept all of the Flynns’ allegations as true, so if they claim they’re not followers of QAnon, that has to be taken as true, and that allowed the false light claim to live on. CNN asked the court to reconsider, highlighting what appeared to be similar cases that were dismissed, and arguing there can be no false light when it is “substantially true” that the Flynns’ showed public support for QAnon.

This Court clearly erred in failing to dismiss Plaintiffs’ false light claim. Having concluded that Plaintiffs’ public statements “express support for QAnon,” see Dkt. 42 (“M&O”) at 8, this Court should have applied the substantial truth test articulated in Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) and Tannerite Sports, LLC v. NBCUniversal News Group, 864 F.3d 236 (2d Cir. 2017), and concluded that the alleged defamatory sting of the Report – i.e. that Plaintiffs are QAnon followers – is substantially true. Yet, this Court never undertook the substantial truth analysis. Once the Court does so, given Plaintiffs’ public decision to align themselves with QAnon, no reasonable reader could conclude that it is materially false to describe Plaintiffs as QAnon followers.

Part of CNN’s argument is that Jack Flynn retweeted multiple tweets that, at the very least, suggest that he supported QAnon.

It is undisputed that the Flynns made – and Jack Flynn himself retweeted – a public video showing Plaintiffs using a phrase that is used solely by those within the QAnon movement: “where we go one, we go all” (the “QAnon Phrase”), accompanied by the hashtag #TakeTheOath. See Am. Compl. ¶ 4, n.2. It is undisputed that Plaintiffs posted or liked multiple tweets containing the hashtag for that Phrase (#WWG1WGA), in addition to other statements and imagery that expressed or implied support for the movement. See Motion at 3-4. It is undisputed that Jack Flynn, as Magistrate Judge Cave correctly pointed out, tweeted on August 21, 2020 that “Q” and “where we go one, we go all” “works for me.” See Dkt. 38 (“R&R”) at 4. And it is undisputed that “where we go one, we go all” is “a slogan used by adherents of the QAnon conspiracy theory.” United States v. Languerand, No. 21-CR-353 (JDB), 2021 WL 3674731, at *3 (D.D.C. Aug. 19, 2021). Plaintiffs publicly aligned themselves with QAnon. Quibbling with the nuance of describing Plaintiffs as QAnon supporters rather than followers is inconsistent with the substantial truth standard articulated in Masson and Tannerite. That is particularly so where, as here, some of Plaintiffs’ actions were literally to follow other QAnon speakers on Twitter and retweet their statements

And, then that takes us to the ruling this week, in which the judge, Gregory Woods, gets to explain, in detail, why retweets are not endorsements:

What does it say about you if you “follow” someone on Twitter? What does it say about you when you retweet someone else’s tweet? These are not just questions for Millennials or Zoomers. They are critical questions in this motion to dismiss. CNN argues that the Court should conclude as a matter of law that by retweeting another’s tweet, the retweeter is adopting every word in the tweet as their own. A retweet, in CNN’s view, cannot merely be used to comment on another’s tweet or to forward the fact of its existence to another. CNN also argues that the Court should adopt the position that when you “follow” a person’s Twitter feed, you become that person’s “follower,” in the sense that you are now an adherent to the entire belief system of the tweeter. By following someone on Twitter, in CNN’s view, you are not merely interested in seeing what the person you are following has to say. The Court remains unwilling to adopt as a matter of law CNN’s sweeping assertions regarding the significance of a retweet, or what it means to “follow” someone on Twitter, and therefore denies CNN’s motion for reconsideration in part and denies CNN’s motion to certify an interlocutory appeal.

As others, including Prof. Eric Goldman have noted, it’s kind of weird that this case even got this far. There are all sorts of reasons why the court should have dismissed this clearly frivolous case. Indeed, the judge even seems to recognize that the case is unlikely to survive summary judgment (the next stage after some level of discovery), but keeps repeating that at the MtD stage, he can’t yet look at evidence, and has to take the Flynns’ claims that they’re not followers of QAnon as truth.

In some ways, keeping this case alive is frustrating, since there are all sorts of ways in which the court could have dumped it (as the magistrate judge recommended). Also, it seems quite unlikely that the case will survive summary judgment. But, because the judge is allowing the case to continue it becomes even more costly, as the discovery and efforts around summary judgment can really add up.

That said, the underlying point made by the judge is actually good and useful. We shouldn’t be held legally liable for retweets or who we follow online. And there are some quotes in this decision that will likely be useful in other cases where plaintiffs seek to hold others legally liable for retweets:

CNN’s argument places far too much weight on the significance of the Flynns’ social media activity. Crucially, none of the Flynns’ tweets state that they are believers in the QAnon movement. For instance, in one of Jack’s tweets on August 20, 2020, Jack stated “I advocate for the Constitution and Bill of Rights. If Q does too~No harm no foul.” Am. Compl. ¶ 23. Similarly, after a Twitter user replied to one of Jack’s tweets with a tweet stating, “We are with you Jack!” along with an image of the letter ‘Q’ and the slogan “where we go one we go all” superimposed over an American flag, Jack tweeted, “If this means you believe in the constitution and equal justice under the law then this works for me.” Id. As the Flynns identify in the complaint, while Jack’s tweets “embraced the Constitution and equal justice under the law,” Jack’s tweets do not state that he believes in “the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon.” Id. The Court cannot assume that Jack believes in every viewpoint held by the QAnon movement merely because Jack tweeted that he shares QAnon’s alleged belief in the Constitution, the Bill of Rights, and equal justice under the law. CNN’s assertion that believing in these principles automatically makes someone a QAnon adherent is simply wrong. A person can believe in certain viewpoints espoused by a movement without believing in all aspects of the movement.

In addition, CNN argues that the Flynns “publicized their support for QAnon” through retweets. Mot. at 3. In the R&R, Judge Cave also relied on the Flynns’ retweets to support the conclusion that CNN’s statement was substantially true. In one example, Jack retweeted a post which stated, “Qanon is not a violent conspiracy. We are every day people seeking truth. . . . . Qanon’s, share and tell your story.” Mot. at 3. Judge Cave concluded that “[b]y using the word ‘we,’ Jack included himself as one who ‘follows the opinions’ of QAnon, and invited others who ‘share[d]’ those opinions to join his comments.” R&R at 31. By relying on the Flynns’ retweets, CNN assumes that the Flynns believed in, and adopted, everything that they retweeted. In essence, CNN is asking the Court to conclude as a matter of law that retweeting a statement is the same as making the statement in the first instance.

The Court disagrees. Jack did not make the statement, “We are every day people seeking truth.” He retweeted it. There are many reasons that someone might retweet a statement; a retweet is not necessarily an endorsement of the original tweet, much less an endorsement of the unexpressed belief system of the original tweeter, as CNN would have it. Therefore, at the motion to dismiss stage, the Court cannot conclude as a matter of law that Jack adopted the content of the tweet and was therefore calling himself a member of the QAnon movement by using the word “we.” Nor can the Court conclude that the Flynns personally believed the other statements that they retweeted, particularly in light of the Flynns’ factual allegation that they do not share the beliefs of the QAnon movement.

That said, some of the ruling is a bit worrisome in its own way, as it suggests that as long as someone doesn’t agree with EVERY principle of a group, it could be false light to call them “a follower” of that group. That can’t be correct either, because obviously there are tons of “followers” of different religions, philosophies, gurus, etc. who don’t believe each and every tenet of those they follow. But should it then be false light for someone to suggest, in passing, that they’re followers? That seems like a stretch.

So, in the end, this case is a weird one. It still seems like a pretty obvious SLAPP suit that should have been done away with quite early. But, for now it lives on. Overall, the case still seems like a likely loser. The defamation claims have all been dismissed. All that’s remaining is this very weak false light claim, where the court is already telegraphing that after it can consider actual evidence that will be presented during the summary judgment stage, CNN still seems likely to succeed.

But, out of all of this mess, there is still something kind of useful: a court saying that retweets (and follows) are not, by themselves, endorsements of the views within.

So, all of you who have “retweets are not endorsements” in your bios can maybe delete that now. It’s official.

Filed Under: defamation, endorsements, jack flynn, leslie flynn, michael flynn, qanon, retweets, slapp, steven biss
Companies: cnn

Will The FTC Investigate People & Companies Paid By Facebook To Use Facebook Live?

from the seems-to-violate-their-standards dept

In the last few months, Facebook Live has certainly become “a thing.” Launched just recently, it was suddenly everywhere — from the pure (but very viral) joy of Candace Payne and her Chewbacca mask to the live streaming of the tragic aftermath of Philando Castile being shot by a police officer in Minnesota. Of course, it appears that part of the reason why Facebook Live is getting so much usage isn’t necessarily that it’s a better product than its competitors, but rather that Facebook has been generously throwing around cash to all sorts of people and companies to get them to use the platform. Last month, it was reported that Facebook was paying many millions of dollars to big media players in exchange for them promising to broadcast via Facebook Live:

According to a document recently obtained by the Wall Street Journal, the social networking giant has signed as many as 140 contracts worth a total of $50 million.

The list of media outlets being paid by Facebook includes traditional players such as CNN and the New York Times, the Journal says, as well as digital-only publishers like Vox, Mashable, and BuzzFeed. The celebrities who are being compensated for creating live video include comedian Kevin Hart and chef Gordon Ramsay.

Some contracts are worth smaller amounts, while 17 of the deals Facebook has signed are worth more than 1million,accordingtothedocumentobtainedbytheJournal.Twomediaoutletsaregettingpaidmorethan1 million, according to the document obtained by the Journal. Two media outlets are getting paid more than 1million,accordingtothedocumentobtainedbytheJournal.Twomediaoutletsaregettingpaidmorethan3 million to create live video?BuzzFeed and the New York Times, and CNN is not far behind, with a reported payment of $2.5 million.

Later in that article, it notes that BuzzFeed is getting $250,000 per month, for 20 Facebook Live videos each month. Good money if you can get it!

Then, a few weeks later, another report came out, noting that Facebook was trying to buy successful YouTubers and Vine users away from those platforms by giving them cash to use the platform as well:

For example, the Journal says it has seen documents that show Facebook is paying Vine star John Paul Piques 119,000topostatleastfivevideosonitslive−streamingserviceoverthenexttwomonths.That?stheequivalentof119,000 to post at least five videos on its live-streaming service over the next two months. That?s the equivalent of 119,000topostatleastfivevideosonitslive−streamingserviceoverthenexttwomonths.That?stheequivalentof24,000 per video. And he is just one of about two dozen other Internet celebrities and video stars who have signed similar deals.

The newspaper says the highest-paid independent video performer appears to be Ray William Johnson, who developed a following for a YouTube show called ?The Equals Three Show,? in which he makes fun of viral videos. He could make as much as $224,000 over the next six months.

This kind of thing doesn’t always work well, for a variety of reasons, but it appears that maybe it’s actually succeeding this time. It’ll be worth watching to see how well things go after the money runs out.

Still, there’s another question that is raised by these stories: are Facebook and all of these other companies and individuals running afoul of the FTC’s social media guidelines? And might the FTC crack down? Now, to be clear, I’m skeptical about the FTC’s rules because they create free speech questions. So far, the FTC’s enforcement over its own guidelines has been, well, haphazard and seemingly arbitrary at best. However, the FTC did update its guidelines last year, and it seems like not disclosing these payments could create some problems, if the FTC decided to step in.

The guidelines themselves seem more focused on “endorsements,” but the question here is whether or not merely using the platform to post new videos is considered an “endorsement.” Under the current guidelines, the FTC has a fairly loose standard of how the situation impacts the credibility given to the person or company by their audience:

The question you need to ask is whether knowing about that gift or incentive would affect the weight or credibility your readers give to your recommendation. If it could, then it should be disclosed.

They also note that merely using a product could be seen as an endorsement:

Simply posting a picture of a product in social media, such as on Pinterest, or a video of you using it could convey that you like and approve of the product. If it does, it?s an endorsement.

You don?t necessarily have to use words to convey a positive message. If your audience thinks that what you say or otherwise communicate about a product reflects your opinions or beliefs about the product, and you have a relationship with the company marketing the product, it?s an endorsement subject to the FTC Act.

While it’s not a direct parallel, you could see how this is pretty close to the situation at hand. People viewing these videos are getting the message that these media companies and individuals approve of Facebook Live — and yet many have not disclosed that they have a strong financial incentive to use the product. It seems like they may be in trouble if the FTC ever decides to take a look.

The question, then, is whether or not the FTC will bother?

Filed Under: endorsements, facebook live, ftc, payments
Companies: buzzfeed, cnn, facebook, mashable

Two YouTubers About To Learn That Trust Is A Valuable Commodity That You Can Only Lose Once

from the paging-the-FTC dept

While we’ve had some reservations in the past about the FTC’s guidelines on endorsements and testimonials in the online arena, our concerns have tended to be about the grey areas of the law. The way that reviews for books, music and games often work falls into this grey area, with products and media handed out for review, and the disclosure guidelines the FTC laid out seem overly intrusive. Whatever our reservations about those guidelines, however, the goal of preventing the surreptitious pimping of a product or service by a trusted source that has direct connections with it was laudable.

Which brings us to two YouTube personalities, TmarTn and Syndicate Project, whose real names are Trevor Martin and Tom Cassell. These two have spent a great deal of time urging their followers to use the CSGO Lotto website while, at best, barely disclosing the site’s sponsorship, and never even coming close to acknowledging that they are executives of the company behind the site.

Trevor Martin and Tom Cassell, known online as TmarTn and Syndicate Project, uploaded videos in which they appeared to win big prizes playing CSGO Lotto. But it has emerged that the pair are presidents of the company, which is incorporated in Florida.

Mr Cassell apologised on Twitter to those who felt misled. In a YouTube video message to his followers, which he later deleted, Mr Martin said that the ownership of CSGO Lotto had “never been a secret”.

“I created the site. I wanted to build something awesome for other people to enjoy and I played on it,” he said. “Obviously, on my end, me playing on Lotto rather than other sites, gives me an advantage because it promotes my own site, but it is not immoral, there is nothing wrong with it. I am 100% honest.”

Yet it’s difficult to square that response with the facts. CSGO stands for Counter Strike: Global Offensive, a very popular online shooter. Within that game, players can mod their weapons with “skins”, or visual modifications. Whatever that sounds like to you, please understand that there is serious money in the use, trading, and selling of these skins. That in turn has spawned websites that allow you to gamble these skins, wagering them to potentially win more valuable skins at the end of a game, with winners supposedly chosen at random. For this, CSGO Lotto has an 8% rake on the value of the skins given away in a round.

So, what kind of money are we talking about here? Well…

In April, Bloomberg reported that online betting on games such as CSGO was a booming industry worth billions of dollars.

Yeah, it’s a big deal. Now, back to our two YouTubers and their claims of total honesty and transparency. Despite what they say, the current outrage has only come about because another YouTuber dug up the ownership details on the company behind CSGO Lotto, finding that the site’s president is one Trevor Martin and its vice president is Thomas Cassell. Before those details were published? No controversy. Now that they’ve been published? Controversy. These two can claim they properly disclosed their associations all they want, but the fact that those disclosures didn’t do the job of informing viewers that they owned the site says everything.

Oh, and about those disclosures:

In short, h3h3 was unable to find any instances of Martin or Cassell disclosing affiliation with CSGO Lotto—let alone high level operation of it….

On top of that, in an earlier video about CSGO Lotto that’s since been made private (you can see it in h3h3’s video above, however), Martin said things like, “We found this new site called CSGO Lotto, so I’ll link it down in the description if you guys want to check it out. We were betting on it today and I won a pot of like $69 or something like that, so it was a pretty small pot, but it was like the coolest feeling ever. I ended up following them [CSGO Lotto] on Twitter and stuff, and they hit me up and they’re talking to me about potentially doing like a skin sponsorship.” That is, as PC Gamer points out, a pretty strange way to talk about a site you helped found.

Martin has also claimed that CSGO Lotto videos did include disclosures, but if you run videos like “HOW TO WIN $13,000″ through the ol’ Wayback Machine, it appears that a very slight disclosure—“video made possible by CSGO Lotto”—was added after the fact.

The wonderful thing about new media outlets like YouTube is that the barriers to gaining a following are lower. The other side of that coin, however, is that trust is the ultimate selling point, and it’s the kind of thing you can only lose once. It’s hard to imagine that these two will have any kind of loyal following after this episode, not to mention that the FTC is likely to come calling. They’ve done it before, after all.

Either way, lesson learned, boys?

Filed Under: disclosure, endorsements, ftc, syndicate project, tmartn, tom cassell, trevor martin, trust, youtube
Companies: csgo lotto

Trump Campaign Was Legally Allowed To Use Neil Young's Music At Rally, But Doing So Was Kind Of Dumb

from the yeh-fired dept

It seems like every presidential election cycle, which comes around far too often and lasts for far too long for my taste, there inevitably ends up being some kind of row between some musicians and some politicians over music used at campaign events. The targets of these disputes tend to be Republican candidates, due to the political demographics of musicians as a general thing, but Democrats have been targeted as well. And, as we’ve mentioned in the past, other than creating a stir in the media and hoping the target campaign relents, there’s roughly shit-all these musicians can do about it. But that stir can often times be enough, especially if the musician uses the opportunity to pimp a rival candidate.

Like Bernie Sanders, for example. Apparently when walking ego Donald Trump decided that he was going to announce his candidacy for President of these United States, his campaign decided to use Neil Young’s “Rockin’ in the Free World” at the event. Neil not only wasn’t pleased, but he used the opportunity to boost the candidate he does endorse.

“Donald Trump was not authorized to use ‘Rockin’ In The Free World’ in his presidential candidacy announcement,” said Young’s manager in a statement. “Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States Of America.”

As it turned out, as it usually does, Trump was authorized to use Young’s music through an ASCAP license. That said, maybe it’s time politicians learned to take the extra step and clear things with musicians before using their music, if for no other reason than to protect against the backlash becoming an advertisement for a rival campaign. Campaigns are very much like brands, after all, and the last thing a brand wants to do is get a competitor’s name in circulation. That’s got to be doubly so when the rival “brand” is someone like Bernie Sanders who, think whatever you like of him, is starving for more name-recognition on the national level. A couple of simple phone calls from the campaign office would likely inoculate against this sort of thing happening, where now every quote from Young on this dust-up mentions Young’s support of Sanders.

All that being said, Young has somehow managed to make Trump the sympathetic figure in this whole story.

A press secretary for the real estate mogul said Wednesday that Trump would respect the wishes of Neil Young and no longer use “Rockin’ In the Free World,” which Trump featured Tuesday during his announcement that he was seeking the Republican Party’s nomination for president. Trump press secretary Hope Hicks said Wednesday that “despite Neil’s differing political views, Mr. Trump likes Neil very much.”

It’s a good way to spin the ending of this story for Trump’s team, appearing so reasonable and agreeable to Young’s antics, which come off looking petty. Still, no reason to let your campaign’s music choice give the artist an opportunity to pimp Bernie Sanders. There are enough conservative musicians out there making music.

Filed Under: bernie sanders, donald trump, endorsements, music, neil young, presidential campaigns, rockin' in the free world
Companies: ascap

NY Times Endorses Tim Wu For Lieutenant Governor, But Chickens Out On Endorsing His Running Mate, Zephyr Teachout

from the take-a-stand dept

We’ve written a little bit about the campaign of Zephyr Teachout and Tim Wu for Governor and Lt. Governor of NY — in particular about incumbent governor Andrew Cuomo’s petty attempt to bankrupt the campaign with a bogus attack on Teachout’s residency. That required a significant waste of time and resources, eventually leading a judge to toss out Cuomo’s frivolous challenge. Teachout and Wu have long histories of being really in touch with the internet generation, and being true anti-corruption reformers. While their campaign may be a longshot (big time “outsiders” against the quintessential insider), they’ve certainly managed to make some noise. As we noted in our last piece, while most political observers felt that Teachout had no chance against the Cuomo brand, Wu stood a significant chance against Cuomo’s preferred Lt. Governor Kathy Hochul.

So it was great to see the NY Times (whose opinion actually does carry significant weight in NY) strongly endorse Wu for Lieutenant Governor today:

Mr. Wu, a political newcomer, offers a fresh perspective and a new voice to counter Albany?s entrenched players. Ms. Hochul does not, and she has a deeply troubling record on health reform, gun control and environmental deregulation. For these reasons, we recommend Mr. Wu in the Democratic primary.

[….] Although he lacks time in politics, Mr. Wu has an impressive record in the legal field, particularly in Internet law and policy. Widely known for coining the phrase ?net neutrality,? he has been an adviser to the Federal Trade Commission as part of his efforts on behalf of consumers to keep the Internet from ?becoming too corporatized.?

As lieutenant governor, he wants to speak out on complicated issues that are too often ignored in Albany like immigrant rights and broadband access needed by more than a million New Yorkers. Those would be worthy pursuits, but he will also have to learn quickly how to navigate Albany?s difficult politics to make his views heard.

However, in a bizarre move, yesterday the same paper refused to endorse either Cuomo or Teachout in an article that really reads like an endorsement of Teachout, but where someone was too chicken to pull the trigger and actually endorse Teachout. It slams Cuomo and praises Teachout throughout the piece. Here’s a snippet:

Mr. Cuomo became governor on that platform and recorded several impressive achievements, but he failed to perform Job 1. The state government remains as subservient to big money as ever, and Mr. Cuomo resisted and even shut down opportunities to fix it. Because he broke his most important promise, we have decided not to make an endorsement for the Democratic primary on Sept. 9.

His opponent in the primary is Zephyr Teachout, a professor at Fordham Law School who is a national expert on political corruption and an advocate of precisely the kind of transparency and political reform that Albany needs. Her description of Mr. Cuomo as part of a broken system ?where public servants just end up serving the wealthy? is exactly on point….

So, uh, why not endorse Teachout? Well, because she doesn’t have enough “experience.” And yes, that seems to contradict exactly what they said about Wu, who also doesn’t have much experience. But the NYT tries to explain this away by saying that the Lt. Governor’s job has much less responsibility (which is true) and thus experience isn’t as big a deal. But, really, everyone who becomes governor doesn’t have experience being governor before (and lots of people get elected to such leadership positions with even less experience). Teachout has been heavily involved in a number of policy issues for quite some time.

As Gawker’s Tom Scocca rightly notes, the NY Times’ logic appears to be as follows:

In other words, Zephyr Teachout can’t replace Cuomo as governor because she is not already the governor.

It is true that Teachout is not an experienced politician. The experienced politicians in New York State are hacks and criminals. That is the situation that the New York Times editorial board would like you to believe it cares about.

Yet the Times will not back the nomination of someone who comes from outside of the state’s culture of political corruption?not some reckless crank, a goldbug or anti-vaccinationist or animal-rights activist, but a degree-holding product of Yale and Duke, a former law clerk, a person who works full-time at understanding the process of political reform.

What other credentials would the Times ask a political reformer to have?

The NY Times further rationalizes its failure to endorse Teachout, who the editorial board clearly likes better, because she has no chance. This is a typical, cynical and pointless “church of the savvy” move, in which the press likes to call things based on what they think will happen, based on their “savviness” in understanding the political process more than the public who actually votes. But that’s why we have elections. Sometimes the “savvy” are wrong. Just ask Eric Cantor.

The NY Times further dings Teachout because she doesn’t have experience in politics (even if she has tremendous policy experience), noting that the governor has to get legislation passed, but Scocca again points out how silly this charge is:

So rather than risk the possibility of failed reform, voters should resign themselves to the certainty of failed reform. On a practical level, then, the Times’ attitude toward corruption in Albany is identical to Cuomo’s: Accept the fact that nothing will ever change.

While the endorsement of Wu is nice to see, that was a “safe” way to pretend to support reform. The NY Times could have taken a real stand by endorsing both Teachout and Wu, but it chose to take the “easy” way out.

Filed Under: andrew cuomo, endorsements, governor, new york, tim wu, zephyr teachout
Companies: ny times

Still A Dumb Trend: Pop Star Endorsements Pretending To Be 'Creative Directors'

from the how-often-will-she-be-at-the-office dept

Almost exactly two years ago, we mocked the ridiculous trend of big companies hiring famous pop stars as “creative directors.” Polaroid had hired Lady Gaga to be “creative director” while Intel had named Will.i.am as “director of creative innovation.” The latest example of this trend is Blackberry (they’re no longer RIM!) announcing that known iPhone user Alicia Keys has been “hired” as “Global Creative Director.” She claimed that she’ll be working with app developers and providing various ideas.

As we said two years ago, it is a good thing that celebrity endorsers actually become more involved with the products they’re endorsing, but it’s somewhat insulting to suggest that these pop stars are actually being hired on as “creative directors.” In fact, it’s insulting to actual creative directors and the amazing work that they do on a daily basis. The value from a Lady Gaga, Will.i.am or Alicia Keys is in the publicity they bring, not in any sort of creative direction they provide (if any). It’s also insulting to the intelligence of the public and the press who follow these things. If these were, say, music services, the position might be real, but in the three most high profile cases, it seems abundantly clear that this is just a way to make an endorsement seem like a bigger deal than it really is.

Filed Under: alicia keys, creative director, endorsements, lady gaga, will.i.am
Companies: blackberry