free speech – Techdirt (original) (raw)

Ex-Congressmen Pen The Most Ignorant, Incorrect, Confused, And Dangerous Attack On Section 230 I’ve Ever Seen

from the this-is-not-how-anything-works dept

In my time covering internet speech issues, I’ve seen some truly ridiculous arguments regarding Section 230. I even created my ever-handy “Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act” article four years ago, which still gets a ton of traffic to this day.

But I’m not sure I’ve come across a worse criticism of Section 230 than the one recently published by former House Majority Leader Dick Gephardt and former Congressional Rep. Zach Wamp. They put together the criticism for Democracy Journal, entitled “The Urgent Task of Reforming Section 230.”

There are lots of problems with the article, which we’ll get into. But first, I want to focus on the biggest, most brain-numbingly obvious problem, which is that they literally admit they don’t care about the solution:

People on both sides of the aisle want to reform Section 230, and there’s a range of ideas on how to do it. From narrowing its rules to sunsetting the provision entirely, dozens of bills have emerged offering different approaches. Some legislators argue that platforms should be liable for certain kinds of content—for example, health disinformation or terrorism propaganda. Others propose removing protections for advertisements or content provided by a recommendation algorithm. CRSM is currently bringing together tech, mental health, education, and policy experts to work on solutions. But the specifics are less important than the impact of the reform. We will support reform guided by commonsense priorities.

I have pointed out over and over again through the years that I am open to proposals on Section 230 reform, but the specifics are all that matter, because almost every proposal to date to “reform Section 230” does not understand Section 230 or (more importantly) how it interacts with the First Amendment.

So saying “well, any reform is what matters” isn’t just flabbergasting. It’s a sign of people who have never bothered to seriously sit with the challenges, trade-offs, and nuances of changing Section 230. The reality (as we’ve explained many times) is that changing Section 230 will almost certainly massively benefit some and massively harm others. Saying “meh, doesn’t matter, as long as we do it” suggests a near total disregard for the harm that any particular solution might do, and to whom.

Even worse, it disregards how nearly every solution proposed will actually cause real and significant harm to the people reformers insist they’re trying to protect. And that’s because they don’t care or don’t want to understand how these things actually work.

The rest of the piece only further cements the fact that Gephardt and Wamp have no experience with this issue and seem to simply think in extremely simplistic terms. They think that (1) “social media is kinda bad these days” (2) “Section 230 allows social media to be bad” and thus (3) “reforming Section 230 will make social media better.” All three of these statements are wrong.

Hilariously, the article starts off by name-checking Prof. Jeff Kosseff’s book about Section 230. However, it then becomes clear that neither former Congress person read the book, because it would correct many of the errors in the piece. Then, they point out that both of them voted for CDA 230 and call it their “most regrettable” vote:

Law professor Jeff Kosseff calls it “the 26 words that created the internet.” Senator Ron Wyden, one of its co-authors, calls it “a sword and a shield” for online platforms. But we call it Section 230 of the 1996 Communications Decency Act, one of our most regrettable votes during our careers in Congress.

While that’s the title of Jeff’s book, he didn’t coin that phrase, so it’s even more evidence that they didn’t read it. Also, is that really such a “regrettable vote”? I see both of them voted for the Patriot Act. Wouldn’t that, maybe, be a bit more regrettable? Gephardt voted for the Crime Bill of 1994. I mean, come on.

Section 230 has enabled the internet to thrive, helped build out a strong US innovation industry online, and paved the way for more speech online. How is that worth “regretting”?

These two former politicians have to resort to rewriting history:

But the internet has changed dramatically since the 1990s, and the tech industry’s values have changed along with it. In 1996, Section 230 was protecting personal pages or small forums where users could talk about a shared hobby. Now, tech giants like Google, Meta, and X dominate all internet traffic, and both they and startups put a premium on growth. It is fundamental to their business model. They make money from advertising: Every new user means more profit. And to attract and maintain users, platforms rely on advanced algorithms that track our every online move, collecting data and curating feeds to our interests and demographics, with little regard for the reality that the most engaging content is often the most harmful.

When 230 was passed, it was in response to lawsuits involving two internet giants of the day (CompuServe, owned by accounting giant H&R Block at the time, and Prodigy, owned by IBM and Sears at the time), not some tiny startups. And yes, those companies also had advertisements and “put a premium on growth.” So it’s not clear why the authors of this piece think otherwise.

The claim that “the most engaging content is often the most harmful” has an implicit (obsolete) assumption. The assumption is that the companies Gephardt and Wamp are upset about optimize for “engagement.” While that may have been true over a decade ago when they first began experiments with algorithmic recommendations, most companies pretty quickly realized that optimizing on engagement alone was actually bad for business.

It frustrates users over time, drives away advertisers, and does not make for a successful long-term strategy. That’s why every major platform has moved away from algorithms that focus solely on engagement. Because they know it’s not a good long-term strategy. Yet Gephardt and Wamp are living in the past and think that algorithms are solely focused on engagement. They’re not because the market says that’s a bad idea.

Just like Big Tobacco, Big Tech’s profits depend on an addictive product, which is marketed to our children to their detriment. Social media is fueling a national epidemic of loneliness, depression, and anxiety among teenagers. Around three out of five teenage girls say they have felt persistently sad or hopeless within the last year. And almost two out of three young adults either feel they have been harmed by social media themselves or know someone who feels that way. Our fellow members of the Council for Responsible Social Media (CRSM) at Issue One know the harms all too well: Some of them have lost children to suicide because of social media. And as Facebook whistleblower Frances Haugen, another CRSM member, exposed, even when social media executives have hard evidence that their company’s algorithms are contributing to this tragedy, they won’t do anything about it—unless they are forced to change their behavior.

Where to begin on this nonsense? No, social media is not “addictive” like tobacco. Tobacco is a thing that includes nicotine, which is a physical substance that goes into your body and creates an addictive response in your bloodstream. Some speech online… is not that.

And, no, the internet is not “fueling a national epidemic of loneliness, depression, and anxiety among teenagers.” This has been debunked repeatedly. The studies do not support this. As for the stat that “three out of five teenage girls say they have felt persistently sad or hopeless” well… maybe there are some other reasons for that which are not social media? Maybe we’re living through a time of upheaval and nonsense where things like climate change are a major concern? And our leaders in Congress (like the authors of the piece I’m writing about) are doing fuck all to deal with it?

Maybe?

But, no, it couldn’t be that our elected officials dicked around and did nothing useful for decades and fucked the planet.

Must be social media!

Also, they’re flat out lying about what Haugen found. She found that the company was studying those issues to figure out how to fix them. The whole point of the study that everyone keeps pointing to was because there was a team at Facebook that was trying to figure out if the site was leading to bad outcomes among kids in order to try to fix it.

Almost everything written by Gephardt and Wamp in this piece is active misinformation.

It’s not just our children. Our very democracy is at stake. Algorithms routinely promote extreme content, including disinformation, that is meant to sow distrust, create division, and undermine American democracy. And it works: An alarming 73 percent of election officials report an increase in threats in recent years, state legislatures across the country have introduced hundreds of harmful bills to restrict voting, about half of Americans believe at least one conspiracy theory, and violence linked to conspiracy theories is on the rise. We’re in danger of creating a generation of youth who are polarized, politically apathetic, and unable to tell what’s real from what’s fake online.

Blaming all of the above on Section 230 is literal disinformation. To claim that somehow what’s described here is 230’s fault is so disconnected from reality as to raise serious questions about the ability of the authors of the piece to do basic reasoning.

First, nearly all disinformation is protected by the First Amendment, not Section 230. Are Gephardt and Wamp asking to repeal the First Amendment? Second, threats towards election officials are definitely not a Section 230 issue.

But, sure, okay, let’s take them at their word that they think Section 230 is the problem and “reform” is needed. I know they say they don’t care what the reform is, just that it happens, but let’s walk through some hypotheticals.

Let’s start with an outright repeal. Will that make the US less polarized and stop disinformation? Of course not. It would make it worse! Because Section 230 gives platforms the freedom to moderate their sites as they see fit, utilizing their own editorial discretion without fear of liability.

Remove that, and you get companies who are less able to remove disinformation because the risk of a legal fight increases. So any lawyer would tell company leadership to minimize their efforts to cut down on disinformation.

Okay, some people say, “maybe just change the law so that ‘you’re now liable for anything on your site.’” Well, okay, but now you have a very big First Amendment problem and, again, you get worse results. Because existing case law on the First Amendment from the Supreme Court on down says that you can’t be liable for distributing content if you don’t know it violates the law.

So, again, our hypothetical lawyers in this hypothetical world will say, “okay, do everything to avoid knowledge.” That will mean less reviewing of content, less moderation.

Or, alternatively, you get massive over-moderation to limit the risk of liability. Perhaps that’s what Gephardt and Wamp really want: no more freedom for the filthy public to ever speak. Maybe all speaking should only occur on heavily limited TV. Maybe we go back to the days before civil rights were a thing, and it was just white men on TV telling us how everyone should live?

This is the problem. Gephardt and Wamp are upset about some vague things they claim are caused by social media, and only due to Section 230. They believe that some vague amorphous reform will fix it.

Except all of that is wrong. The problems they’re discussing are broader, societal-level problems that these two former politicians failed to do anything about when they were in power. Now they are blaming people exercising their own free speech for these problems, and demanding that we change some unrelated law to… what…? Make themselves feel better?

This is not how you solve problems.

In short, Big Tech is putting profits over people. Throughout our careers, we have both supported businesses large and small, and we believe in their right to succeed. But they can’t be allowed to avoid responsibility by thwarting regulation of a harmful product. No other industry works like this. After a door panel flew off a Boeing plane mid-flight in January, the Federal Aviation Administration grounded all similar planes and launched an investigation into their safety. But every time someone tries to hold social media companies accountable for the dangerous design of their products, they hide behind Section 230, using it as a get-out-of-jail-free card.

Again, airplanes are not speech. Just like tobacco is not speech. These guys are terrible at analogies. And yes, every other industry that involves speech does work like this. The First Amendment protects nearly all the speech these guys are complaining about.

Section 230 has never been a “get out of jail” card. This is a lazy trope spread by people who never have bothered to understand Section 230. Section 230 only says that the liability for violative content on an internet service goes to whoever created the content. That’s it. There’s no “get out of jail free.” Whoever creates the violative content can still go to jail (if that content really violates the law, which in most cases it does not).

If their concerns are about profits, well, did Gephardt and Wamp spend any time reforming how capitalism works when they were lawmakers? Did they seek to change things so that the fiduciary duty of company boards wasn’t to deliver increasing returns every three months? Did they do anything to push for companies to be able to take a longer term view? Or to support stakeholders beyond investors?

No? Then, fellas, I think we found the problem. It’s you and other lawmakers who didn’t fix those problems, not Section 230.

That wasn’t the intent of Section 230. It was meant to protect companies acting as good Samaritans, ensuring that if a user posts harmful content and the platform makes a good faith-effort to moderate or remove it, the company can’t be held liable.

If you remove Section 230, they will have even less incentive to remove that content.

We still agree with that principle, but Big Tech is far from acting like the good Samaritan. The problem isn’t that there are eating disorder videos, dangerous conspiracy theories, hate speech, and lies on the platforms—it’s that the companies don’t make a good-faith effort to remove this content, and that their products are designed to actually amplify it, often intentionally targeting minors.

This is now reaching levels of active disinformation. Yes, companies do, in fact, seek to remove that content. It violates all sorts of policies, but (1) it’s not as easy as people think to actually deal with that content (because it’s way harder to identify than ignorant fools with no experience think it is) and (2) studies have shown that removing that content often makes problems like eating disorders worse rather than better (because it’s a demand-side problem, and users looking for that content will keep looking for it and find it in darker and darker places online, whereas when it’s on mainstream social media, those sites can provide better interventions and guide people to helpful resources).

If Gephardt and Wamp spoke to literally any actual experts on this, they could have been informed about the realities, nuances, and trade-offs here. But they didn’t. They appear to have surrounded themselves with moral panic nonsense peddlers.

They’re former Congressmen who assume they must know the right answer, which is “let’s run with a false moral panic!”

Of course, you had to know that this ridiculous essay wouldn’t be complete without a “fire in a crowded theater” line, so of course it has that:

There is also a common claim from Silicon Valley that regulating social media is a violation of free speech. But free speech, as courts have ruled time and time again, is not unconditional. You can’t yell “fire” in a crowded theater where there is no fire because the ensuing stampede would put people in real danger. But this is essentially what social media companies are letting users do by knowingly building products that spread disinformation like wildfire.

Yup. These two former lawmakers really went there, using the trope that immediately identifies you as ignorant of the First Amendment. There are a few limited classes of speech that are unprotected, but the Supreme Court has signaled loud and clear that it is not expanding the list. The “fire in a crowded theater” line was used as dicta in a case that was about locking up someone protesting the draft (do Gephardt and Wamp think we should lock up people for protesting the draft?!?) in a case that hasn’t been considered good law in seven decades.

Holding social media companies accountable for the amplification of harmful content—whether disinformation, conspiracy theories, or misogynistic messages—isn’t a violation of the First Amendment.

Yes, it literally is. I mean, there’s no two ways around it. All that content, with a very, very few possible exceptions, is protected under the First Amendment.

Even the platform X, formerly known as Twitter, agrees that we have freedom of speech, but not freedom of reach, meaning posts that violate the platform’s terms of service will be made “less discoverable.”

You absolute chuckleheads. The only reason sites can do “freedom of speech, but not freedom of reach” is because Section 230 allows them to moderate without fear of liability. If you remove that, you get less moderation.

In a lawsuit brought by the mother of a young girl who died after copying a “blackout challenge” that TikTok’s algorithm allegedly recommended to her, the Third Circuit Court of Appeals recently ruled that Section 230 does not protect TikTok from liability when the platform’s own design amplifies harmful content. This game-changing decision, if allowed to stand, could lead to a significant curtailing of Section 230’s shield. Traditional media companies are already held to these standards: They are liable for what they publish, even content like letters to the editor, which are written by everyday people.

First of all, that ruling is extremely unlikely to stand because even many of Section 230’s vocal critics recognize that the reasoning there made no sense. But second, the court said that algorithmic recommendations are expressive. And the end result is that while it may not be immune under 230 it remains protected under the First Amendment because the First Amendment protects expression.

This is why anyone who is going to criticize Section 230 absolutely has to understand how it intersects with the First Amendment. And anyone claiming that “you can’t shout fire in a crowded theater” is good law is so ignorant of the very basic concepts that it’s difficult to take them seriously.

If anything, Section 230 reforms could make platforms more pleasant for users; in the case of X, reforms could entice advertisers to come back after they fled in 2022-23 over backlash around hate speech. Getting rid of the vitriol could make space for creative and fact-based content to thrive.

I’m sorry, but are they claiming that “vitriol” is not protected under the First Amendment? Dick and Zach, buddies, pals, please have a seat. I have some unfortunate news for you that may make you sad.

But, don’t worry. Don’t blame me for it. It must be Section 230 making me make you sad when I tell you: vitriol is protected by the First Amendment.

The changes you suggest are not going to help advertisers come back to ExTwitter. Again, they will make things worse, because Elon is not going to want to deal with liability, so he will do even less moderation because the changes to Section 230 will increase liability for moderation choices you make.

How can you not understand this?

But for now, these platforms are still filled with lies, extremism, and harmful content.

Which is protected by the First Amendment, and which won’t change if Section 230 is changed.

We know what it’s like to sit at the dinner table and watch our grandchildren, even those under ten years old, scroll mindlessly on their phones. We genuinely worry, every time they pick them up, what the devices are doing to them—and to all of us.

Which also has got nothing to do with Section 230 and won’t change no matter what you do to Section 230?

Also, um, have you tried… parenting?

This may really be the worst piece on Section 230 I have ever read. And I’ve gone through both Ted Cruz and Josh Hawley’s Section 230 proposals.

This entire piece misunderstands the problems, misunderstands the law, misunderstands the constitution, then lies about the causes, blames the wrong things, has no clear actual reform policy, and is completely ignorant of how the changes they seem to want would do more damage to the very things they’re claiming need fixing.

It’s a stunning display of ignorant solutionism by ignorant fools. It’s the type of thing that could really only be pulled off by overconfident ex-Congresspeople with no actual understanding of the issues at play.

Filed Under: 1st amendment, content moderation, dick gephardt, disinformation, free speech, moral panic, section 230, social media, zach wamp

Court Shuts Down Tennessee’s Attempt To Ban People From Talking About Abortion Options

from the get-bent,-censors dept

Tennessee’s government cranks out a lot of stupid laws. It’s been doing it for years, but things have accelerated recently as the state’s legislators seek to curtail rights for, well, pretty much everyone but white men. It has enacted book bans, anti-trans laws, and the Supreme Court’s Dobbs decision triggered its long-dormant anti-abortion law.

But it wasn’t enough to simply forbid women from getting abortions in the state. The government felt it must prevent residents from traveling to state where abortions are still legal to have the procedure performed. And that still wasn’t enough. The state also enacted an “abortion trafficking” law that forbade people from discussing out-of-state abortion options with minors. Fuck free speech, said the state. We simply can’t allow an unregulated marketplace of ideas, not when there are females to oppress.

Fortunately, that law is now dead, thanks to two tenacious plaintiffs (social services consultant Rachel Welty, state legislator Aftyn Behn) and their equally tenacious lawyer, Daniel Horwitz, who has done more than his fair share of dismantling unconstitutional rulings and laws. The federal court decision [PDF] opens up with an explanation of the “abortion trafficking” law, highlight exactly where the law goes wrong when it comes to regulating speech.

Recently, Tennessee enacted a so-called “abortion trafficking” law (“Chapter 1032”) that purports to forbid certain actions taken in connection with access to an abortion by an unemancipated minor—including, specifically, “recruit[ing]” such a minor “for the purpose of . . . procuring” an abortion. Tenn. Code Ann. § 39-15-220(a). If Tennessee had chosen to limit that prohibition to abortions performed illegally in Tennessee, then that enactment would likely have been within the tradition of prohibitions on speech facilitating unlawful acts. The Tennessee General Assembly, however, chose to take the extraordinary step of attempting to outlaw any “recruit[ment] . . . [of] a pregnant unemancipated minor within this state for the purpose of . . . [p]rocuring an act that would constitute a criminal abortion [in Tennessee] for the pregnant unemancipated minor, regardless of where the abortion is to be procured.” Tenn. Code Ann. § 39-15-220(a)(1) (emphasis added). Tennessee, in other words, has chosen to outlaw certain communications made in the furtherance of abortions that are, in fact, entirely legal.

That’s a big problem. It’s big enough the legislators pushing the bill must have been aware of it. Almost certainly they were. The court says this is an extremely easy call for it to make. The next paragraph opens up very bluntly.

It cannot do so.

Here’s why:

Tennesseans are Americans, and, as Americans, every state in the nation is presumptively open to them. It is, therefore, a basic constitutional fact—which Tennessee has no choice but to accept—that, as long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans. Because obtaining an abortion out of state is a lawful option, moreover, Tennessee cannot make it a crime to communicate freely about that option.

This isn’t the legislative equivalent of rocket science. But the legislators chose to ignore these obvious facts because they thought they might get away with it, at least for a little while. And a little oppression is better than no oppression.

Intolerance and hate make people stupid. This stupidity is most notable when it involves people with enough power to make their stupidity plainly apparent.

No one associated with Chapter 1032 seems to have a particularly clear picture of what the provision is supposed to prohibit—not the prosecutors who will be called on to enforce it; not the state attorneys called on to defend the statute in court; and, it seems, not even the individuals who drafted the provision itself, who appear to have simply pulled the recruitment-focused language from other, preexisting statutes in which that language makes more sense. Whatever it means to “recruit” a person to receive a lawful abortion, however, such recruitment would inherently involve First Amendment-protected speech, meaning that the recruitment provision is subject to the ordinary restrictions that the First Amendment imposes.

And so it goes for several more pages. The law is simply indefensible. It cannot possibly be constitutional, no matter how much time and other people’s money the state is willing to throw away trying to defend it. However, they couldn’t be bothered to personally confront the potential outcomes of this abhorrent law. Almost all of the government’s defense was done via filings and court appearances by the state’s lawyers. Even when given a chance to avoid the lawsuit by simply stating in writing the law would not be enforced in the manner the plaintiffs sued over, they refused to respond.

Of course, the DAGs could simply explain that they are not, in fact, planning to enforce Chapter 1032 in the manner that Welty and Behn fear. That brings the court to the fourth Frisch factor—a refusal to disavow enforcement—which, in this instance, strongly supports a finding of standing. The defendants have had an unusual number of opportunities to explain how they will or will not enforce the statute. Welty sent them letters, and she gave them plenty of time to respond—so much time that it ultimately interfered with her ability to obtain a temporary restraining order. Nevertheless, the defendants completely ignored her. The defendants could have explained that refusal at the court’s hearing, but not one defendant even attended, let alone testified. At the hearing, the court made very clear that its consideration of the case would benefit from some shred of evidence regarding the defendants’ intentions—even simply signed declarations confirming that the lawyers representing them are accurately representing the defendants’ understanding of the statute. Still, however, they provided nothing.

That’s pretty ugly. That’s an extremely shitty blend of arrogance and cowardice. The government officials don’t like being challenged and appear to believe responding directly to the court and/or the plaintiffs is beneath them. Their refusal to make personal appearances also strongly suggests they’re not willing to be directly confronted by the likely victims of their unconstitutional law.

This inaction doesn’t help the state. It only makes it easier for the court to find in favor of the plaintiffs and issue an injunction.

The court finds that Welty and Behn are entitled to, and will receive, an injunction against all enforcement of the recruitment provision by the defendants against any party. The court does not reach that conclusion simply because this is an overbreadth challenge, but because such relief is necessary to prevent Welty’s and Behn’s own irreparable injuries. This is a case about the free flow of information, and it would be naive to think that the plaintiffs’ injuries can be addressed simply by preventing the application of the recruitment provision to them and them alone, while leaving their messages to die on the vine because no one else can pass them along.

The closing paragraphs forcefully drive the point home:

The freedom of speech guaranteed by the First Amendment is not simply a special protection that the Constitution grants to a few, high-profile speakers so that those speakers can hear themselves talk; it is a protection available to everyone, for the interconnected benefit of everyone, because messages do not gain their fullest power by being uttered, but by being spread.

Welty and Behn do not just have a right to speak their message; they have a right to live in a state where that message can be repeated by all who find it valuable to all who wish to hear it. Otherwise, there would be no actual freedom of speech—just freedom of a few speakers to address a silenced populace.

The law is blocked, but it’s as good as dead. Most likely, the state will appeal this decision. But this ain’t the Fifth Circuit so it’s unlikely to fall into the lap of a judge who thinks the First Amendment only applies to speech they agree with. The other option the state has to do the fastest, cheapest thing: strike the law from the books. But legislators who like wielding power more than they like respecting rights never take the easy way out. They just delay the inevitable since it costs them nothing to do so.

Filed Under: 1st amendment, abortion, censorship, daniel horwitz, free speech, tennesee

Newsom’s Unconstitutional AI Bills Draw First Amendment Lawsuit Within Minutes Of Signing

from the stop-passing-shit-bills dept

I do not understand why California Governor Gavin Newsom thinks he has to be the Democratic equivalent of Texas Governor Greg Abbott or Florida Governor Ron DeSantis, signing obviously unconstitutional laws for the sake of winning culture war arguments.

It’s really shameful. It’s cheap political pandering, while disrespecting the rights of everyone he’s supposed to represent.

Newsom and his Attorney General, Rob Bonta, keep losing First Amendment lawsuits challenging the bad internet laws he keeps signing (even if Newsom pretends he won them). And he’s wasting California taxpayer money fighting losing battles while engaging in petty political stunts.

The latest are a pair of obviously unconstitutional AI bills, AB 2655 and AB 2839, about AI and deepfakes (and possibly AB 2355, which might be slightly more defensible, but not much). While much of the media coverage has been about SB 1047, an equally bad bill Newsom seems unlikely to sign, the California legislature spent this session coming up with a ton of awful and unconstitutional ideas.

The specifics of the laws here place limits on “election-related deepfakes.” This gets a bit trickier from a First Amendment standpoint because of two things pushing in opposite directions. The first is that election-related political speech is definitely considered some of the most well-protected, most untouchable speech under the First Amendment.

A big reason why we have that First Amendment is that the founders wanted to encourage a vigorous and sometimes contentious debate on the issues and our leaders. For that reason, I think courts will pretty clearly toss out these laws as unconstitutional.

The one thing pushing back on this is there is that there is one area where courts have granted states more leeway in saying certain election-related information is not protected: when it’s lies about actual voting, such as where voting will be, when and how. There was a recent paper looking at some of these restrictions.

But the problem is that the laws Newsom just signed are not, in any way, limited in that manner. AB 2839 bans the sharing of some election-related deepfakes around election time.

AB 2655 then requires “a large online platform” to block political deepfakes around election time. Notably, it exempts broadcast TV, newspapers, magazines, and vaguely defined “satire or parody” content, which increases the list of reasons it’s clearly unconstitutional. Similar laws are thrown out for being “underinclusive” in not covering other similar content, since that proves that the government’s action here is not necessary.

Of course, that “satire or parody” exception just means everyone sharing these videos will claim they’re satire or parody. Any lawsuits would then be fought over whether or not they’re satire or parody, and that’s something judges shouldn’t be deciding.

AB 2355 requires political ads to disclose if they used AI. This is… kinda meaningless? As digital creation tools increasingly will use AI in the background for all sorts of things (fix the lighting! adjust the cloud cover!) this gets kind of silly.

Gavin Newsom tweeted about how he would use these laws to force Elon to remove a stupid, obvious deepfake he had posted of Kamala Harris, as if playing up that this is an unconstitutional stunt.

Look, I get that Newsom isn’t big on the First Amendment. But tweeting out that you signed a bill to make sure a specific piece of content gets removed from social media is pretty much waving a giant red flag that says “HEY, I’M HERE VIOLATING THE FIRST AMENDMENT, LOOK AT ME, WHEEEEEEEE!!!”

Anyway, within probably minutes of Newsom signing the bill into law, the first lawsuit challenging 2655 and 2839 was filed. It’s by Christopher Kohls, who created the video that Elon shared, and which Newsom directly called out as one that he intended to forcibly remove. As expected, Kohl claims his video (which is, I assure you, very, very stupid) is a “parody.”

On July 26, 2024, Kohls posted a video parodying candidate Kamala Harris’s first presidential campaign ad. The humorous YouTube video (“the July 26 video”) is labeled “parody” and acknowledges “Sound or visuals were significantly edited or digitally generated.”

The July 26 video features AI-generated cuts of a voice sounding like Vice President Harris narrating why she should be President. In the video “Harris” announces she is the “Democrat candidate for President because Joe Biden”—her prior running mate, current boss, and the President—“finally exposed his senility at the” infamous presidential debate with former President Trump on June 27, 2024. The video’s voiceover closely resembles Harris’s voice and the production itself mirrors the aesthetic of a real campaign ad—using clips from Harris’s own campaign videos—but the comedic effect of the video becomes increasingly clear with over-the-top assertions parodying political talking points about Harris and her mannerisms. “She” claims to have been “selected because [she is] the ultimate diversity hire and a person of color, so if you criticize anything [she] say[s], you’re both sexist and racist.” The “Harris” narrator claims that “exploring the significance of the insignificant is in itself significant,” before the video cuts to a clip of the real Harris making similarly incomprehensible remarks about “significance.”

Kohls, who is ideologically opposed to Harris’ political agenda, created this content to comment about Harris’s candidacy in humorous fashion

So here’s the thing. If Newsom had kept his mouth shut, California AG Rob Bonta could have turned around and said Kohls has no standing to sue here, because the video is clearly a parody and the law exempts parody videos. But Newsom, wanting to be a slick social media culture warrior, opened his trap and told the world that the intent of this law was to remove videos exactly like Kohls’ stupid video.

And as stupid as I think Kohls’ video is, and as pathetic as it is that Elon would retweet it, the lawsuit is correct on this:

Political speech like Kohls’ is protected by the First Amendment

I don’t think the lawsuit is particularly well done. It’s a bit sloppy, and the arguments are not as strong as they might otherwise be. I think there could be better filings challenging these laws, but this law seems so blatantly unconstitutional that even a poorly argued case should be able to win.

Yes, this is equally as bad as the awful laws being passed in Florida and Texas (and to some extent New York). It’s kind of incredible how these four states (two strongly Republican, two strongly Democrat) just keep passing the worst, most obviously unconstitutional internet/speech laws, and thinking that just because partisan idiots cheer them on it must be fine.

Filed Under: 1st amendment, ab 2355, ab 2655, ab 2839, ai, california, chirstopher kohls, deepfake videos, deepfakes, elections, elon musk, free speech, gavin newsom, misinformation, moral panic, parody, politics, rob bonta
Companies: twitter, x

KOSA Advances Out Of House Committee, But Cracks Are Showing

from the it's-a-bad-bill,-stop-it dept

This morning, the House Energy and Commerce Committee held a pretty long markup about KOSA, COPPA 2.0, and other bills. The quick summary is that both of those bills passed out of committee and could be taken to the House floor this session.

The longer version, though, is that cracks in the coalition pushing these bills are showing. It’s not clear that there’s a comprehensive vision that gets KOSA over the finish line, and that’s good for protecting kids, protecting privacy, and protecting speech. Because all of these versions of KOSA are an attack on all three of those things (while pretending not to be).

As we’ve described, the new versions discussed today are different from the version that passed the Senate earlier this year. The House leadership doesn’t much like the Senate version, and the new versions don’t seem likely to fix that. Any changes made to shore up support of House leadership seems likely to lose plenty of Democrats.

And while backers of the bills complained that they were voting on a “weakened version,” they also admitted that there were concerns about “unintended consequences” creeping into the bill. This statement from Rep. Kathy Castor, one of the key backers of the bill, is the sound of someone who knows they have a shitty bill on their hands, but wants to pass it anyway:

Rep. Kathy Castor (D-Fla.), the Democratic co-lead on Bilirakis’s House version, acknowledged the version is a “weakened version” from what passed in the Senate, but urged her colleagues to advance the bill with hopes the language will be changed before going to the full House.

“We can’t allow unintended consequences to creep in, because there were politics played with KOSA here at the eleventh hour,” she said. “I think it’s important today to move it forward with the promise and acknowledgment that we…I don’t know that I could support this version if it comes to the House floor in this manner, but I trust Chair [Cathy] McMorris Rodgers [R-Wash.] and her leadership.”

Throughout the hearing, certain concerns were raised about the bills. It sounds as though many offices, both Republican and Democrat, are concerned about how they will allow the opposing party tremendous leeway in potentially pressuring internet companies to take down speech they dislike.

Thus, Democrats are realizing that KOSA is a bill targeting LGBTQ and abortion info, whereas some Republicans are now calling out how it could be used to pressure companies to remove pro-life content and/or religious content. With folks on both ends realizing that at its heart, KOSA is a censorship bill and will cause problems when “the other side” is in power, hopefully the bill won’t have enough momentum to keep going.

It’s almost amusing to see the opposing sides highlighting how their opposites would abuse the bill. The left-leaning Chamber of Progress is calling out how the Heritage Foundation would use KOSA to censor abortion info:

Meanwhile, some House Republicans are warning their colleagues of the reverse happening:

If both parties are worrying about how the other side might use KOSA to censor content, perhaps everyone can meet in the middle and admit that this is an unconstitutional, First Amendment-ignoring censorship bill, and dump the whole thing in the trash?

Filed Under: 1st amendment, censorship, coppa 2.0, democrats, free speech, kathy castor, kosa, privacy, protect the children, republicans

Settlement In Florida Book Ban Lawsuit Means A Bunch Of Books Are Headed Back To School Libraries

from the unburning-books dept

Florida’s legislative antipathy towards free speech and general overall bigotry has generated plenty of bad laws and plenty of fully justified lawsuits. Earlier this month, the state’s quasi-book bans became the defendant in a federal lawsuit filed by multiple big-name publishers. But that was just the latest lawsuit, and the first to actually sue the state itself.

Plenty of other litigation is underway, targeting individual counties that have removed books from schools due to book challenges (over-)enabled by the state’s anti-speech laws. But there’s finally a little bit of good news to report. A lawsuit filed on behalf of two authors and two parents against Nassau County and its school board has resulted in a win for the plaintiffs. As Politico reports, lots of books that should have been removed under the (extremely loose) standards of the law are being placed back on the shelves of school libraries.

A northeast Florida school district this week agreed to restore 36 books that were challenged and previously pulled from campus libraries in a settlement of a federal lawsuit fighting how local officials carried out the state’s policies for shielding students from obscene content.

The settlement reached by Nassau County school officials and a group of parents, students and the authors of the removed children’s book “And Tango Makes Three” marks a significant twist in the ongoing legal battles surrounding Florida’s K-12 book restrictions, which have been derided as “book bans” by opponents. Under the agreement, that book and others such as the “The Bluest Eye” by Toni Morrison and the “The Clan of the Cave Bear” by Jean Auel will once again be available to students after being removed last year.

None of these fit the legal standards for obscenity. If they did, they would have been removed under existing obscenity laws, rather than only recently removed because some bigoted jackasses, enabled by the new law, applied the pressure needed to remove content they don’t like.

Nope, this is just codified hatred that allows people to decide no one should have access to books they don’t personally care for. The dumbest part of this is probably the removal of “And Tango Makes Three,” which contains nothing even remotely resembling “obscene” material. This is from law firm Selendy Gay’s statement on the lawsuit settlement:

Significantly, the Board acknowledges in the settlement that Tango has pedagogical value, is appropriate for students of all ages, and contains no “obscene” material—facts that another Florida School Board—in Escambia County—is still contesting. The Board’s acknowledgement makes good sense: since its publication in 2005, Tango has been a highly awarded children’s book and has been lauded by educators and childhood development experts. Tango, which tells the true story of a same sex penguin couple who form a lasting pair bond and together adopt, hatch, and raise a happy and healthy chick, conveys important themes about family responsibility, adoption, LGBTQIA+ families, and natural science to which all students should have access.

Just the same old bigotry, but with a new law to abuse. No one contesting this book truly believed the material was “obscene.” They just don’t believe any student of any age should have access to a book that contains a positive depiction of a same-sex relationship.

And it’s just blatant racism driving some of the other book removals:

These 35 [challenged] books include significant works by Toni Morrison, Jonathan Safran Foer, Alice Sebold, Jodi Picoult and Erika Sanchez, which address racism in America, as well as the life experiences of immigrants, first-generation Americans, trans Americans and other underrepresented communities and individuals.

It’s also the same old bigots. The statement from the law firm points out that all 35 of the books removed were challenged by a of collective censorial asshats calling themselves “Citizens Defending Freedom.” Of course, there’s little about the group that indicates any actual desire to defend freedoms.

Citizens Defending Freedom (CDF) is the latest organization to establish a spoke-and-wheel structure to centrally manage local politicking on a range of hot button conservative issues. Its promise to “PROVIDE materials for home school families” is what first drew my attention, but CDF also claims that chapters in 100 counties will address corruption, school curricula, and “breaches of constitutional liberty.” It’s at 20 active chapters, so it’s got a way to go.

Nevertheless, the organization — just a couple of years old at this point — already takes credit for Nueces County, TX ending its sex education classes, Miami-Dade County introducing a Day of Prayer in public schools, and Lake Wales, FL for creating “Responsible Fatherhood Month.” Its chief opponents, not surprisingly, seem to be the NAACP, George Soros, and Walt Disney.

Yes, nothing says “defending freedom” like removing books from school libraries and forcing public schools to host days of prayer. Or, you know, implicitly threatening Nassau County school officials with arrest for agreeing to return these books to school libraries, as CDF does in its statement in response to the lawsuit settlement:

In response to this settlement, CDF has also made the Nassau County Sheriff aware, highlighting the district’s own admission of the presence of obscene materials in schools and shared the district’s own findings as evidence that they are distributing materials in violation of Florida’s child obscenity laws. “By their own words, the Nassau School District has determined these books violate state law. Yet, rather than take corrective action, they’ve chosen to put them back in the hands of our children. We intend to hold them accountable,” said Sarah Calamunci, CDF Florida State Director.

Keep crying, haters. People who actually care about freedom will continue to combat efforts like these, as well as the unconstitutional laws that enable them. Here’s wishing you loss after loss after loss in the coming months, as federal judges (for the most part) continue to recognize these efforts for what they are: government-enabled censorship of views those in power don’t agree with.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, justin richardson, lawsuit, peter parnell, sara moerman, toby lentz
Companies: selendy gay

Twitter’s Pre-Musk Plans Mirrored Elon’s Vision—Until He Abandoned, Trashed Or Ignored Them

from the so-much-missed-opportunity dept

Today, the new book by NY Times reporters Kate Conger and Ryan Mac, C_haracter Limit: How Elon Musk Destroyed Twitter_, comes out. If you’re at all interested in what went down, I can’t recommend it enough. It’s a well-written, deeply researched book with all sorts of details about the lead-up to the acquisition, the acquisition itself, and the aftermath of Elon owning Twitter.

Even if you followed the story closely as it played out (as I did), the book is a worthwhile read in multiple ways. First, it’s pretty incredible to pull it all together in a single book. There was so much craziness happening every day that it’s sometimes difficult to take a step back and take in the larger picture. This book gives readers a chance to do just that.

But second, and more important, there are plenty of details broken by the book, some of which are mind-boggling. If you want to read a couple of parts that have been published, both the NY Times and Vanity Fair have run excerpts. The NY Times one covers Elon’s infatuation with “relaunching” Twitter Blue as a paid verification scheme a week after he took over. The Vanity Fair one looks at the actual closing of the deal and how chaotic it was, including Elon coming up $400 million short and demanding that Twitter just give him the money to cover the cost of closing the deal.

Both excerpts give you a sense of the kinds of amazing stories told in the book.

But as I read an advance copy of the book, two things stood out to me. The first was Elon’s near total lack of understanding of the concept of Chesterton’s Fence. The second was how much the old regime at Twitter was already trying to do almost everything that Elon claimed he wanted to do. But as soon as he took over, he was so sure (1) that the old regime were complete idiots and (2) that he could reason his way into solving social media, that he not only ignored what people were telling him, he actively assumed they were trying to sabotage him, and did away with anyone who could be helpful.

Elon rips out some fences

If you’re unaware of the concept of Chesterton’s Fence, it’s that you shouldn’t remove something (such as a fence) if you don’t understand why it was put there in the first place. Over and over in the book, we see Elon dismiss all sorts of ideas, policies, and systems that were in place at Twitter without even caring to find out why they were there. Often, he seems to assume things were done for the dumbest of all reasons, but never bothered to understand why they were actually done. Indeed, he so distrusted legacy Twitter employees that he assumed most were lying to him or trying to sabotage him.

It’s perhaps not that surprising to see why he would trust his own instincts, not that it makes it smart. With both Tesla and SpaceX, Elon bucked the conventional wisdom and succeeded massively. In both cases, he did things that many people said were impossible. And if that happens to you twice and makes you the world’s wealthiest person, you can see how you might start assuming that whenever people suggest that something is a bad idea or impossible, you should trust your gut over what people are telling you.

But the point of Chesterton’s Fence is not that you should never do things differently or never remove policies or technology that is in place. The point is that you should understand why they’re there. Elon never bothers to take that tiny step, and it’s a big part of his downfall.

In Character Limit, we see that Elon has almost no actual intellectual curiosity about social media. He has no interest in understanding how Twitter worked or why certain decisions were made. Propped up by a circle of sycophants and yes-men, he assumes that the previous regime at Twitter must have been totally stupid, and therefore there is no reason to listen to anything they had to say.

It is stunning how in story after story in the book, Elon has zero interest in understanding why anything works the way it does. He is sure that his own instincts, which are clouded by his unique position on the platform with tens of millions of followers, represent everyone’s experience.

He’s quite sure that his own instincts can get him to the right answers. This includes thinking he could (1) double advertising revenue in a few years (when he’s actually driven away over 80% of it) and (2) eclipse even that erroneously predicted increased advertising revenue by getting millions of people to pay for verification. In actuality, as the book details, a tiny fraction of users are willing to pay, and it’s bringing in just a few million dollars per quarter, doing little to staunch the losses of billions of dollars in advertising that Elon personally drove away.

The stories in the book are jaw-dropping. People who try to explain reality to him are fired. The people who stick around quickly learn the only thing to do is to lie to him and massage his ego. And thus, the book is full of stories of Elon ripping out the important pillars of what had been Twitter and then being perplexed when nothing works properly anymore.

He seems even more shocked that tons of people don’t seem to love him for his blundering around.

Old Twitter was already planning on doing what Elon wanted, but way better

Perhaps this is somewhat related to the last point, but the book details multiple ways in which Parag Agrawal, who had just taken over from Jack Dorsey a few months earlier, was already looking to do nearly everything Elon publicly claimed he wanted to do with Twitter.

When Elon first announced the deal to buy Twitter, I suggested a few (unlikely, but possible) ways in which Elon could actually improve Twitter. First up was that by taking the company private, Elon could remove Twitter from the whims of activist investors who were more focused on the short-term than the long-term.

The book goes into great detail about how much activist investors created problems for both Dorsey and Agrawal, pre-Musk. Specifically, their revenue and user demands actually made it somewhat more difficult to put in place a long-term vision.

In my original post, I talked about continuing Twitter’s actual commitment to free speech, which meant fighting government attempts to censor information (not just when you disagreed with the political leaders).

But beyond that, there were things like further investing in and supporting Bluesky (see disclaimer)* and its ATprotocol. After all, Elon claimed that he wanted to “open source” the algorithm.

Moving to an open protocol like ATProtocol would have not just allowed the open sourcing of the recommendation algorithm, it would have opened up the ability for anyone to create their own algorithm, both for recommendations and for moderation. Instead, that’s all happening on the entirely independent Bluesky app, which really only exists because Elon threw away Twitter’s deal to work with Bluesky.

Furthermore, the book reveals that well before Elon came on the scene, Parag and other top execs at the company were working on something called Project Saturn, which was discussed a bit in Kurt Wagner’s earlier book on this topic, but which is explained in more detail here.

The book reveals that Parag very much agreed with Elon (and Jack) that expecting companies to constantly completely remove problematic content was not a very effective solution.

So they created a plan to basically rearchitect everything around “freedom of speech, not freedom of reach.” Ironically, this is the very same motto that Elon claimed to embrace soon after taking over the company (and after firing Parag).

But Parag and others at Twitter had already been working on a system to operationalize that very idea. The plan was to use different “levels” and “circles” in which users who were following the rules would have their content eligible to be promoted to varying degrees within the algorithm. The more you violated the site’s rules, you would move to further and further outer layers/rings of the system (which is where the Project Saturn name came from). This would lead to less “reach,” but also less of a need for Twitter to fully remove accounts or tweets.

It was a big rethinking of how social media could work and how it could support free speech. In reading about it in the book, it sounds like exactly what Elon said he wanted. A small team within Twitter, pushed by Parag’s vision, had been working on it since way before Elon purchased his shares and started the takeover process. According to the book, even as Elon caused such a mess in the summer of 2022 trying to back out of the deal, Parag kept pushing the team to move forward with the idea.

Once Elon took over, it appears that a few remaining people at the company tried to show him Project Saturn and explain to him how it would match the ideals he had talked about.

But Elon ignored them, tossed out all the work they had done on it, and just randomly started unbanning people he thought belonged back on the platform without any plan on how to deal with those users if they started causing problems (and driving away advertisers). He assumed that his new verification plan would solve both the revenue issues for the company and all moderation issues.

Even the idea that Twitter was too bloated with excess employees and a lack of vision seemed to be part of Agrawal’s plans. Before Elon had made his move, the book reveals that Agrawal had drawn up plans to lay off approximately 25% of the company and greatly streamline everything with a focus on building out certain lines of business and users. He did move to lay off many senior leaders as part of that streamlining, though it wasn’t as clearly explained at the time what the larger plan was. Elon’s effort to buy Twitter outright (and then back out of the deal) forced Agrawal to put the layoff plans on hold, out of a fear that Elon would view those layoffs as an attempt to sabotage the company.

It’s truly striking how much of what Elon claimed he wanted to do, Parag and his exec team were already doing. They were making things more open, transparent, and decentralized with Bluesky. They were decreasing the reliance on “takedowns” as a trust & safety mechanism with Saturn. They were betting big on “freedom of speech, not reach” with Saturn. They were fighting for actual free speech with legal actions around the globe. They were cutting employee bloat.

But the company was doing all of those things thoughtfully and deliberately, with a larger strategy behind it.

As the book details, Elon came in and not only tore down Chesterton Fences everywhere he could, he dismissed, ignored, or cut loose all of those other projects that would have taken him far along the path he claimed he wanted to go.

So, now he’s left with a site that has trouble functioning, has lost nearly all of its revenue, and is generally seen as a laughingstock closed system designed just to push Elon’s latest political partisan brain farts, rather than enabling the world’s conversation.

Of course, in the wake of all that destruction, it has enabled things like Bluesky to spring forth entirely unrelated to Twitter, and to put some of this into practice. Just this weekend, Bluesky passed 10 million users, helped along by Elon’s (again) hamfisted fight with Brazil, which (like so many other things Elon) may have a good reason at its core (fighting against secretive government demands), but was done in the dumbest way possible.

If there’s one thing that is painfully clear throughout the book, it is that Elon was correct that there were all sorts of ways that Twitter could be more efficient, more open, and less strict in takedowns. But he handled each in the worst way possible and destroyed what potential there was for the site.

Later today on the podcast, I’ll have an interview with Kate Conger about the book and Elon where we talk some more about all of this.

* As I’ve said before, I’m now on the board of Bluesky, which wouldn’t have been necessary if Elon hadn’t immediately cut Bluesky free from Twitter upon taking over the company.

Filed Under: character limit, chesterton fences, content moderation, elon musk, free speech, kate conger, parag agrawal, project saturn, ryan mac, social media
Companies: bluesky, twitter, x

No ABC Did Not Engage In Election Interference In [Checks Notes] Fact Checking Donald Trump

from the fact-check:-this-is-all-stupid dept

In the bizarro world of MAGA politics, up is down, black is white, and apparently, fact-checking is now a form of election interference.

It is no secret that people across the political spectrum have a very warped view of what free speech or the First Amendment means. But I am particularly perplexed by the view of many lately (and this seems to run across the political spectrum, tragically) that fact checking is an attack on free speech and should be punished. It feels ridiculous to even bring this up, but fact checking is not just protected speech, it is the proverbial “more speech” that pretend defenders of the First Amendment always claim is the only possible answer to speech you disagree with.

Anyway, last week you might have heard there was a Presidential debate between Kamala Harris and Donald Trump held on ABC. The CNN debate earlier this year between Trump and Biden included a vow from the moderators that they would do no fact-checking, which resulted in those moderators being roundly criticized.

On the other hand, ABC chose a few narrow points, when the lies were incredibly egregious, to provide simple fact-checks to blatantly false claims. I believe they responded just three times to make factual claims, even though the former President told an astounding number of blatant outright lies (not just exaggerations, but fully invented, made up bullshit).

This has set Republicans off on a ridiculous crusade, claiming that ABC was actively working with the Harris campaign to support it, which is not how any of this actually works. Then, Trump himself claimed that the debate was “rigged” (of course) and told Fox & Friends that (1) you “have to be licensed to” be a news organization and that (2) “they ought to take away their license for the way they did that” (i.e., fact-checked the debate).

Others in Trump’s circles claimed that the fact-checking was a form of “in-kind contribution” to the Harris campaign worth millions of dollars.

All of this is nonsense. First off, one of the complaints was that the moderators fact-checked Trump but didn’t fact-check Harris. There are a few responses to that, including that if you removed the three times they fact-checked Trump and compared things then, they still chose not to fact-check him on many, many more false claims and egregious lies. The second is that the fact-checking complaints around Harris are ones of leaving out context or having slight exaggerations. With Trump it was literal made-up nonsense, such as the false, bigoted claims about eating cats and dogs, or the idea that Democrats support killing babies after birth. Just out and out fearmongering bullshit.

But, again, fact-checking is free speech. The party that claims to be such a big believer in free speech should also support that.

However, even dumber is Trump’s false claim that ABC has to be licensed. That’s not how this works. It’s yet another false statement coming from the mind of a man who seems to only work in false statements. Individual affiliates can require licenses to obtain spectrum, but ABC itself is not something that needs licensing. You don’t need to be licensed to be a news organization.

Just ask Fox News.

Of course, we’ve been through this before with Trump, who has sued many news organizations he’s disliked (without much success) and has made this same bogus threat before. In 2017, he said that NBC should lose its (non-existent) license for reporting on former Secretary of State Rex Tillerson calling Trump a “moron.” A year later, he threatened to pull NBC’s (still non-existent) license over its reporting on Harvey Weinstein.

Earlier this year, he said both NBC and CNN should have their “licenses or whatever” taken away for not giving him free airtime by showing his victory speech following the Iowa caucuses.

All of this is ridiculous. It’s an attempt at intimidation. It’s an attempt to threaten and cajole news organizations to not speak, to not use their First Amendment rights, and to not fact check when the former President spews absolute fucking nonsense.

But, because MAGA world is making a big deal of this, even the FCC Chair, Jessica Rosenworcel, had to put out a statement on the very basics of the First Amendment:

“The FCC does not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”

It is true that there are some very, very, very limited and narrow circumstances under which the FCC can pull a local affiliate’s spectrum license (not the larger network). However, not liking how fact-checking happens is not even in the same zip code as those.

Indeed, if MAGA world is getting into the business of pulling affiliate licenses, they might not like where things end up. There has been an ongoing effort to pull the license from a Fox affiliate in Philadelphia, based specifically on Fox News admitting that it broadcast false information about the 2020 election.

I don’t support such efforts, which likely violate the First Amendment. Even if it’s a closer call when you’re dealing with a network that has effectively admitted to deliberately spreading false information the company knew was false. But here, the call from Trump to remove the license is simply because of a fact check. It was because they told the truth, not because they lied.

When that effort to remove the Fox affiliate’s license came about, MAGA world was furious. Senator Ted Cruz went on a rant about how “the job of policing so-called ‘misinformation’ belongs to the American people—not the federal government” and complained about how “the left” “want the FCC to be a truth commission & censor political discourse—a prospect that is unconstitutional.”

Hey Ted, care to comment on the claims from last week?

I see no similar statement from him about Trump and the MAGA world now demanding the same thing (for much more ridiculous reasons). I combed through his ExTwitter feed and surprisingly (well, not really) he seems to have no issue with his side calling to pull licenses. How typically hypocritical.

Tragically, this has become the modern Republican Party. They are total hypocrites on free speech. When they want to protect their own speech, they wrap themselves up in the cape of the First Amendment, but when someone who disagrees with them speaks up to contradict them with facts, they’re happy to push for censorship and punishment over speech.

Filed Under: 1st amendment, debate, donald trump, fact checking, fcc, free speech, kamala harris, ted cruz
Companies: abc

‘Patriot Reporter’ Latest Conspiracy Theorist To Discover It’s Not Libel If It’s The Truth

from the stupid-is-as-stupid-does dept

It’s hardly surprising that someone who makes a living trafficking in things other than facts would have trouble recognizing facts when they’re applied to him. That’s the case here with Philip Godlewski — a self-proclaimed “patriot reporter” and QAnon conspiracy theorist. (h/t Volokh Conspiracy)

According to claims made in court, Godlewski is “one of the highest Anons” (drug reference inferred even if not meant to be implied) and supposedly earns $5 million a month with his QAnon-related “broadcasts” on social media.

Godlewski is litigiously upset Chris Kelly of the Scranton Times accurately portrayed him as (1) a sex offender, (2) a person specializing in leading people down “rabbit holes,” and (3) a supporter of the January 6 insurrection attempt.

The “highest Anon”/”patriot broadcaster” made several claims in lawsuit, none of them either believable or actionable. He takes issue with the sex offender label, insists the part about the “rabbit holes” somehow damaged his sideline as a real estate agent, and insists he did not participate in the January 6 insurrection.

The court isn’t impressed at all with this lawsuit, something made immediately clear by its assessment of Godlewski in the ruling’s [PDF] opening paragraphs, which notes it’s a bit rich for someone crying libel about sex offender statements to be doing the sort of thing he does on a daily basis (to the tune of $5M/month [allegedly]):

The ironic gist of the opinion column at issue was that the QAnon broadcaster, who affirmatively states in his published videos on social media that certain high-ranking elected and public officials are satanic, cannibalistic pedophiles sexually abusing children and drinking their blood to ingest the life-extending chemical adrenochrome, previously pled guilty in this county to corruption of a minor resulting from a sexual relationship with a 15-year-old girl while he was a 27-year-old baseball coach at her school….

And that’s how cases like these go. People who feel free to libel individuals, along with entire groups of people, are the first to start screaming “defamation” the moment those tactics are applied to them or the people they support.

But it won’t work here. For one thing, Godlewski’s assertion that the Scranton Times’ claim he had a “sexual relationship with a 15-year-old” is false is something immediately undercut not only by public records, but by his own guilty plea to a misdemeanor charge. (The latter of which was noted in the article, which pointed out he never “had sex” with the girl and had “pled to a misdemeanor.”)

Here’s the court again:

As noted above, the only text messages quoted in the Affidavit of Probable Cause in Godlewski I are those in which Godlewski acknowledged and described oral sex with Ms. DuBorgel, the presence of her hair in his “crotch area,” and his sexual activity with her in 2010 when she was 15 years of age. Those text messages served as the factual predicate for the single count of Corruption of Minors, 18 Pa. C.S. § 6301(a)(1), contained in the Criminal Information charging that Godlewski “did repeatedly have inappropriate text [m]essages and contact with a minor” in 2010. Indeed, Godlewski’s counsel conceded at the time of oral argument that “[t]he corruption of minors count in the complaint was consistent with the information in the affidavit.”

I_n his guilty plea colloquy in Godlewski I, Godlewski admitted that his executed colloquy was a “signed statement,” that he “kn[e]w exactly what you are charged with and what you are pleading to,” that he understood “that by pleading guilty you are admitting that you did the things you are charged with,” that he understood “the elements of the crime charged that you are pleading to,” and that he “admit[ted] that you did the above stated act” constituting corruption of a minor._

That means the stuff about his sexual activity with a minor wasn’t libel. It was just the truth — something QAnon acolytes often tend to have trouble seeing, much less acknowledging.

The same goes for the “rabbit holes.” At issue here was an illustration accompanying the Scranton Times article, which depicted a real estate sign reading “RABBIT HOLE FOR SALE!” beneath the words “UN-REALTOR.” Godlewski claimed this besmirched his real estate sideline by presenting him as an unscrupulous real estate agent.

The court, again, disagrees. It points out “rabbit hole” has been used in this context for years by any number of people to suggest being sucked into conspiracy theories. The reference added (UN-REALTOR) was not meant to question his ability to sell real estate, but rather to use Godlewski’s career as an additional punchline to punctuate his obsession with a long list of conspiracy theories he espoused on his broadcast, ranging from denying the United 93 crash ever happened to claiming California Governor Newsom had “killed himself” and had been replaced by a “clone.”

Finally, the court indirectly tells Godlewski he should probably actually read the article he’s suing over. The paper never said he participated in the January 6 raid on the Capitol. In fact, it unambiguously presents Godlewski’s own statements, in which he denies having attended while also noting that he falsely claimed hours after the raid that Vice President Mike Pence had been arrested.

It’s a complete shutout. Godlewski loses on every count. If he wasn’t a QAnon enthusiast, he might have recognized facts for what they are. But he’s so deep in his own bullshit, he can’t recognize the truth when it’s being reflected back at him by a local journalist. Unfortunately, it doesn’t appear Godlewski will need to pay the paper’s legal fees for wasting its time with a lawsuit that was a loser the moment this “patriot broadcaster” brain-farted it into existence. And that’s the problem. Without strong anti-SLAPP laws, people are forced to engage with stupid litigants who are given every opportunity to drag innocent defendants down to their level and in hopes of beating them with their experience.

Filed Under: 1st amendment, conspiracy theorists, defamation, free speech, libel, philip godlewski, qanon

More Of RFK Jr.’s ‘Don’t Moderate Me, Bro’ Cases Are Laughed Out Of Court

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

In the last month, I wrote about two of Robert F. Kennedy Jr.’s bullshit crazy lawsuits over him being very, very mad that social media companies keep moderating or limiting the spread of his dangerous bullshit anti-vax nonsense. In one, the Ninth Circuit had to explain (not for the first time) to RFK and his disgraced Yale Law professor lawyer, Jed Rubenfeld, that Meta fact checking RFK Jr. does not violate the First Amendment, and that Section 230 does not turn every internet company into a state actor.

In the other case, one of the MAGA world’s favorite judges ignored both the facts and the scolding he just got from the Supreme Court to insist that the Biden administration has been trying to censor RFK Jr., a thing that has not actually happened.

But Professor Eric Goldman reminds me that there were two other cases involving RFK Jr. and his anger at being moderated that had developments that I hadn’t covered. And both of them were, thankfully, not in courtrooms of partisan judges who live in fantasylands.

First, we had a case in which RFK Jr. sued Meta again. I had mentioned this case when it was filed. The Ninth Circuit one mentioned above was also against Meta, but RFK Jr. decided to try yet again. In this case, he also sued them claiming that efforts to restrict a documentary about him by Meta violated his First Amendment rights.

If you don’t recall, Meta very temporarily blocked the ability to share the documentary, which they chalked up to a glitch. They fixed it very quickly. But RFK Jr. insisted it was a deliberate attempt to silence him, citing Meta’s AI chatbot as giving them the smoking gun (yes, they really did this, even the chatbot is just a stochastic parrot spewing whatever it thinks will answer a question).

What I had missed was that district court Judge William Orrick, who is not known for suffering fools lightly, has rejected RFK Jr.’s demands for a preliminary injunction. Judge Orrick is, shall we say, less than impressed by RFK Jr. returning to the well for another attempt at this specious argument, citing the very Ninth Circuit case that RFK Jr. just lost in his other case against Meta.

The plaintiffs assert that they are likely to succeed on the merits of their First Amendment claim, which is that Meta violated their rights to free speech by censoring their posts and accounts on Meta’s platforms. But the First Amendment “‘prohibits only governmental abridgment of speech’ and ‘does not prohibit private abridgment of speech.’” Children’s Health Def. v. Meta Platforms, Inc., —F. 4th—, No. 21-16210, 2024 WL 3734422, at *4 (9th Cir. Aug. 9, 2024) (first quoting Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019); and then citing Prager Univ. v. Google LLC, 951 F.3d 991, 996 (9th Cir. 2020)). Because there is no apparent state action, this claim is unlikely to succeed.

RFK Jr. twists himself into a pretzel shape to try to claim that Meta is magically a state actor, but the court has to remind him that these arguments are quite stupid.

The Ninth Circuit recently has twice affirmed dismissal of claims filed by plaintiffs alleging that social media platforms violated the plaintiffs’ First Amendment rights by flagging, removing, or otherwise “censoring” the plaintiffs’ content shared on those platforms. See Children’s Health, 2024 WL 3734422 at *2–4; O’Handley, 62 F.4th at 1153–55. In both cases, the Ninth Circuit held that the plaintiffs’ claims failed at the first step of the state action framework because of “the simple fact” that the defendants “acted in accordance with [their] own content-moderation policy,” not with any government policy…..

The only difference between those cases and this one is that here, the plaintiffs seem to allege that the “specific” harmful conduct is Meta’s censorship itself, rather than its policy of censoring. Based on the documents submitted and allegations made, that is a distinction without a difference.

RFK Jr. tried to argue that the ruling by Judge Doughty in Louisiana supports his position, but Judge Orrick wasn’t born yesterday and that he can actually read what the Supreme Court wrote in the Murthy decision rejecting these kinds of arguments.

The Murthy opinion makes my decision here straightforward. Murthy rejected Missouri’s factual findings and specifically explained that the Missouri evidence did not show that the federal government caused the content moderation decisions. Yet here, the plaintiffs rely on Missouri as their evidence that a state rule caused the defendants’ alleged censorship actions. Even if I accepted the vacated district court order as evidence here—which I do not—the Supreme Court has plainly explained why it does not support the plaintiffs’ argument.

Even though he notes that he doesn’t even need to go down this road, Judge Orrick also explains why the whole “state actor” argument is nonsense as well:

The plaintiffs’ theory is that Meta and the government colluded or acted jointly, or the government coerced Meta, to remove content related to Kennedy’s 2024 presidential campaign from Meta’s platforms. The problem with that theory is again the lack of evidence. The Missouri and Kennedy findings were rejected by the Supreme Court, as explained above. And they—and the interim report—suggest at most a relationship or communications between Meta and the government about removal of COVID-19 misinformation in 2020 and 2021. Even if the plaintiffs proved that Meta and the government acted jointly, or colluded, or that Meta was coerced by the government to remove and flag COVID-19 misinformation three years ago, that says nothing about Meta’s relationship and communications with the government in 2024. Nor does it suggest that Meta and the government worked together to remove pro-Kennedy content from Meta’s platforms.

Because of this, the plaintiffs fail to show likelihood of success on the merits—or serious questions going to the merits—for any of the three possible state action prongs. They do not provide evidence or allegations of a “specific[]” agreement between Meta and the government to specifically accomplish the goal of removing Kennedy content from Meta platforms. See Children’s Health, 2024 WL 3734422, at 5 (describing joint action test and collecting cases). Nor do they show that the government exercised coercive power or “significant encouragement” for Meta to remove Kennedy-related content in 2024. Id. at 9–10 (describing coercion test and finding that allegations about Congressmembers’ public criticism of COVID-19 misinformation on social media sites was insufficient to show government coerced platforms to remove it). And for similar reasons, the plaintiffs do not establish a “sufficiently close nexus” between the government and the removal of Kennedy-related content from Meta’s platforms. Id. at *5. Their First Amendment claim accordingly fails at step two of the state action inquiry. It is far from likely to succeed on the merits.

RFK Jr. also made a Voting Rights Act claim, that removing the documentary about him somehow interfered with people’s rights to vote for him. But the court notes that this argument is doomed by the fact that Meta noted that the blocking of links was an accident, which happens all the time:

The defendants point to compelling evidence that the video links were incorrectly automatically flagged as a phishing attack, a “not uncommon” response by its automated software to newly created links with high traffic flow. Oppo. 5–6 (citing Mehta Decl. Ex. A ¶ 7). The defendants’ evidence shows that once the defendants were alerted to the problem, through channels set up specifically for that purpose, the links were restored, and the video was made (and is currently still) available on its platform. Mehta Decl. Ex. A. ¶¶ 4–8, Exs. M–Q. Though the plaintiffs say the removal of the video was an effort to coerce them to not urge people to vote for Kennedy, the defendants’ competing evidence shows that it was a technological glitch and that the plaintiffs were aware of this glitch because they reported the problem in the first place. And if the plaintiffs were aware that a tech issue caused the removal of the videos, with that “context” it would probably not be reasonable for them to believe the video links were removed in an effort to coerce or intimidate them.

The court is also not impressed by the argument that other people (not parties to the case) had accounts removed or limited for sharing support for RFK Jr. As the judge makes clear, RFK Jr. doesn’t get to sue someone over a claim that they intimidated someone else (for which there isn’t any actual evidence anyway).

Third, the plaintiffs submit evidence that other peoples’ accounts were censored, removed, or threatened with removal when they posted any sort of support for Kennedy and his candidacy. See, e.g., Repl. 1:13–24; [Dkt No. 29-1] Exs. A, B. The defendants fail to respond to these allegations in their opposition, but the reason for this failure seems obvious. Section 11(b) provides a private right of action for Person A where Person B has intimidated, threatened, or coerced Person A “for urging or aiding any person to vote.” 52 U.S.C.A. § 10307(b). It does not on its face, or in any case law I found or the parties cite, provide a private right of action for Person C to sue Person B for intimidating, threatening, or coercing Person A “for urging or aiding any person to vote.” Id. Using that example, the three plaintiffs would be “Person C.” Their evidence very well might suggest that Meta is censoring other users’ pro-Kennedy content. But those users are not plaintiffs in this case and are not before me now.

Importantly, the plaintiffs had plenty of time and opportunity to add any of those affected users as new plaintiffs in this case, as they added Reed Kraus between filing the initial complaint and filing the AC and current motion. But they did not do so. Nor do they allege or argue that AV24 has some sort of organizational or third-party standing to assert the claims of those affected users. And while they seem to say that Kennedy himself is affected because that evidence shows Meta users are being coerced or threatened for urging people to vote for him, the effect on the candidate is not what § 11(b) protects. Accordingly, this evidence does not support the plaintiffs’ assertions. The plaintiffs, therefore, fail to counter the compelling evidence and reasons that the defendants identify in explanation for the alleged censorship.

More critically, the plaintiffs do not deny the defendants’ portrayal of and reasons for the defendants’ actions. The plaintiffs fail to incorporate those reasons into their assessment of how a “reasonable” recipient of Meta’s communications would interpret the communications in “context.” See Wohl III, 661 F. Supp. 3d at 113. Based on the evidence provided so far, a reasonable recipient of Meta’s communications would be unlikely to view them as even related to voting, let alone as coercing, threatening, or intimidating the recipient with respect to urging others to vote.

Towards the end of the ruling, the court finally gets to Section 230 and notes that the case is probably going nowhere even without everything earlier, because Section 230 makes Meta immune from liability for its moderation actions. However, the case didn’t hinge on that because neither side really went deep on the 230 arguments.

As for the other RFK Jr. case, I had forgotten that he had also sued Google/YouTube over its moderation efforts. At the end of last month, the Ninth Circuit also upheld a lower court ruling on that case in an unpublished four-page opinion where the three-judge panel made quick work of the nonsense lawsuit:

Google asserts that it is a private entity with its own First Amendment rights and that it removed Kennedy’s videos on its own volition pursuant to its own misinformation policy and not at the behest of the federal government. Kennedy has not rebutted Google’s claim that it exercised its independent editorial choice in removing his videos. Nor has Kennedy identified any specific communications from a federal official to Google concerning the removed Kennedy videos, or identified any threatening or coercive communication, veiled or otherwise, from a federal official to Google concerning Kennedy. As Kennedy has not shown that Google acted as a state actor in removing his videos, his invocation of First Amendment rights is misplaced. The district court’s denial of a preliminary injunction is AFFIRMED.

If RFK Jr. intends to appeal the latest Meta ruling (and given the history of his frivolous litigation, the chances seem quite high that he will), the Ninth Circuit might want to just repurpose this paragraph and swap out the “Google” for “Meta” each time.

Now, if only the Fifth Circuit would learn a lesson or two from the Ninth Circuit (or the Supreme Court), we could finally dispense with the one case that ridiculously went in RFK Jr.’s favor.

Filed Under: 1st amendment, 9th circuit, content moderation, free speech, jed rubenfeld, rfk jr., state actor, voting rights act, william orrick
Companies: google, meta, youtube

Florida The Latest State To Be Sued By Big Name Publishers Over Unconstitutional Book Bans

from the do-they-still-have-a-1st-amendment-in-florida? dept

Far too many states have decided to engage in censorship, urged on by an alarmingly large voting bloc that truly appears to be on the side of fascism, so long as that fascism appears to be on their side.

Since this is, for the moment, still the United States of America, home of several enshrined rights, most of these efforts have been scaled back, dismantled, or blocked completely following challenges in federal courts. Most, but not all. Some laws have survived, and those that have are likely going to be reviewed by a Supreme Court that has been deliberately stocked with the sort of people who think rights should be subservient to their favorite flavor of “conservatism.”

Fortunately, the burden of displacing these laws hasn’t been placed solely on residents of states run by bigoted lawmakers. Major publishers have stepped into the judicial breach. But this time, they’re using their litigation powers for good, rather than attempting to control access to literature by wielding their copyright law cudgels.

Multiple publishers have banded together once again to sue Florida over its censorial book-targeting laws. While not technically a book ban, the law accomplishes the same ends through slightly different means. But, at the end of the day, it’s still just censorship. And it’s still just as unconstitutional. Here’s Richard Luscombe, reporting for The Guardian from Miami, Florida.

“Florida HB 1069’s complex and overbroad provisions have created chaos and turmoil across the state, resulting in thousands of historic and modern classics, works we are proud to publish, being unlawfully labeled obscene and removed from shelves,” Dan Novack, vice-president and associate general counsel of Penguin Random House (PRH), said in a statement.

[…]

PRH is joined in the action by Hachette Book Group, HarperCollins Publishers, Macmillan Publishers, Simon & Schuster and Sourcebooks. The 94-page lawsuit, which also features as plaintiffs the Authors Guild and a number of individual writers, was filed in federal court in Orlando on Thursday.

The suit contends the book removal provisions violate previous supreme court decisions relating to reviewing works for their literary, artistic, political and scientific value as a whole while considering any potential obscenity; and seeks to restore the discretion “of trained educators to evaluate books holistically to avoid harm to students who will otherwise lose access to a wide range of viewpoints”.

The lawsuit targets “book removal provisions” that mainly target books kept in classes by teachers for access by their students, rather than school or other public libraries. Not that those entities aren’t affected. Books present in school libraries are also subject to challenges by state residents. But that’s the pretense that allows state government spokespeople to claim “book removal” mandates are not the same as “book bans.” After all, it’s not the government ordering removal. It’s simply schools and teachers responding to book challenges from other citizens.

“This is a stunt,” Florida Department of Education spokesperson Sydney Booker said in an email to The Hill. “There are no books banned in Florida. Sexually explicit material and instruction are not suitable for schools.”

In retrospect, I’m being far too fair to this government official. He doesn’t really respond to the lawsuit’s allegations. Instead, he crafts a new narrative that suggests the new law changes nothing about the long-held status quo. Sexually explicit material has never been suitable for schools. Therefore, the law being sued over is just… a redundancy?

Except that if it was the same as everything that’s come before it, librarians wouldn’t be pulling tons of books they’ve almost always felt comfortable giving students access to. And teachers wouldn’t be purging their classroom bookshelves of titles they’ve historically used for assigned reading or classroom instruction.

Since it went into effect last July, countless titles have been removed from elementary, middle and high school libraries, including American classics such as Brave New World by Aldous Huxley, For Whom the Bell Tolls by Ernest Hemingway and The Adventures of Tom Sawyer by Mark Twain.

Contemporary novels by bestselling authors such as Margaret Atwood, Judy Blume and Stephen King have also been removed, as well as The Diary of a Young Girl, Anne Frank’s gripping account of the Holocaust, according to the publishers.

The law prohibits books that “describe sexual content” from being made accessible to any student, whether they’re five or eighteen (the law regulates everything from kindergarten to 12th grade). It does not define the term “sexual content” with any specificity and the wording makes it clear that the context of the sexual content does not matter. Then it goes on to equate “sexual content descriptions” with pornography, which is already regulated and forbidden to be distributed to minors. And it goes without saying, no classroom or school library contains any actual pornography.

The first part of the law is so vague as to allow something as innocuous as the phrase “made love” to trigger the book removal process. The second part is redundant in the most stupid way — making something already illegal more illegal?

That’s the basis of the legal challenge [PDF] raised by the publishers, who note the poorly written, purely censorial law has already resulted in the removal of books long considered to be acceptable for most school-age readers. The plaintiffs want these two sections invalidated.

And they should be. They were clearly written by people blinded by their own bigotry — legislators who hope to purge the state’s schools of anything they don’t personally agree with. And they appear to be completely fine with the collateral damage caused by the badly written, unconstitutionally vague law — the disappearance of classic literature they’ve possibly even read and enjoyed themselves — so long as it definitely harms the stuff they hate.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, lawsuit, ron desantis
Companies: harpercollins, hatchette, macmillan publishers, penguin random house, simon & schuster, sourcebooks