political speech – Techdirt (original) (raw)

Court Should Block Registration Of ‘Trump Too Small’ Trademark Not Because It’s Someone’s Name, But Because No One Should Control The Phrase

from the free-speech-means-we-can-all-say-trump-too-small dept

There’s an interesting thing that happens all too often in trademark cases, whereby people seem to flip the underlying argument. We see it in cases where someone opposes the registration of a certain trademark, and the party seeking the trademark complains that the government is trying to “censor” them or limit their speech, when more accurately granting the trademark is more likely to limit everyone else’s speech.

This can get complicated. Some may recall that back when there were a series of cases regarding whether or not the US Patent & Trademark Office could deny a trademark because it found it “disparaging,” whether or not that violated the 1st Amendment. My initial reaction to the case was that denying a trademark like that wouldn’t violate the 1st Amendment, because it then meant that the term or phrase in question was free for anyone to use. If anything, it would enable more speech. After talking it over with many lawyers, however, I came to change my mind on the more specific question at play, which was simply whether or not the limitation on “disparaging” speech was a violation of the 1st Amendment, because it involved the government determining whether or not speech was disparaging, which made it a content-based restriction.

But, the larger underlying point still stands, that when a trademark is granted it is, inherently, limiting the speech of others in some ways; some might argue in justifiable ways, but it’s important to keep that in mind.

This brings us to a case coming before the Supreme Court next term. On its face, it looks similar to earlier cases regarding NFL team and band names deemed “disparaging.” But, in some ways it’s different. The case is Vidal v. Elster, and the underlying issue is whether or not the PTO can reject an applied for trademark on the phrase “Trump Too Small.”

In this case, the PTO rejected the trademark, not because of disparagement — which the Supreme Court already dealt with in Matal v. Tam (the case about the band The Slants) — but because because of a prohibition on trademarks on the names of living people.

Steve Elster then went to court (well, first he went to the Trademark Trial and Appeal Board, which rejected his claim, and then he went to court), arguing that the case was similar to Tam, and that the rejection of his trademark for being about a living person violated the 1st Amendment in the same way that the ban on disparaging trademarks did. The Federal Circuit made a ruling saying this ban on trademarks named after living people also violated the 1st Amendment, similar to Tam:

The statute leaves the PTO no discretion to exempt trademarks that advance parody, criticism, commentary on matters of public importance, artistic transformation, or any other First Amendment interests. It effectively grants all public figures the power to restrict trademarks constituting First Amendment expression before they occur. In Tam , Justice Alito, joined by three other Justices, characterized as “far too broad” a statute that would bar the trademark “James Buchanan was a disastrous president.” 137 S. Ct. at 1765 (Alito, J.)….

But, again, not granting a trademark doesn’t stop the underlying speech. It just means that the government can’t hand control over that speech (including the power to restrict it from others) to private parties.

And that’s the case that an amicus brief from Public Citizen makes in this case. It goes back to my original take in the Tam case, that the underlying issue here is not a 1st Amendment violation around a ban on trademarks based on content, but rather that allowing this trademark would actually limit the usage of this political speech.

The First Amendment, however, does not require registration of the proposed trademark. Respondent does not need trademark rights to print his speech on shirts that he will offer for sale. Further, registration would allow him to seek to prevent other members of the public from promoting their shared political antagonism using the same or similar words on shirts offered for sale. Political messages printed on shirts and other items of clothing, however, are fully protected, noncommercial speech even if the clothing is offered for sale. The First Amendment would not tolerate the enforcement of such a trademark against other people’s expressive use of language similar to “Trump Too Small,” and by the same token it bars a federal agency from giving Respondent a limited monopoly in that core political speech.

As Public Citizen’s Paul Levy explains in a related blog post:

… the printing of criticisms of companies and political figures on T-shirts and other expressive merchandise is noncommercial speech protected by the First Amendment. We also contend that the Lanham Act cannot consistent with the First Amendment be enforced against this non-commercial speech, and that the only reason why Elster could want a trademark is to secure a limited monopoly in core political speech that would entitle him to decide who else could print this slogan on clothing or other paraphernalia offered for sale, or to charge a fee for a license to use the slogan. Elster’s papers admit (see page 19 of his opposition to a grant of certiorari), that he would enforce his trademark against “competing T-shirts using his brand name in a confusing manner.” In effect, the very fact about the phrase being trademarked—that it represents core political speech attacking the person whose name in part of the mark—that makes it appealing for an as-applied challenge to the statutory provision requiring consent from the person whose name appears in the mark, is the feature of the mark that makes it unacceptable under the First Amendment to grant a monopoly limiting its use on expressive merchandise. We suggest that the Court could decide the First Amendment bars the issuance of trademarks in slogans that criticize political and other public figures, or it could construe the Lanham Act as requiring the longstanding rule for trademark examiners that bars registration of political slogans.

Basically, the argument is that most of the discussion in this case is all wrong, as it’s not about whether or not the PTO can reject the use of living people’s names, but whether or not the underlying trademark would even be valid in the first place, while making it clear that the 1st Amendment forbids the use of a trademark to effectively control and limit the use of a (obviously 1st Amendment protected) bit of political discourse.

Filed Under: 1st amendment, political speech, steven elster, supreme court, trademark, trump too small

Midjourney CEO Says ‘Political Satire In China Is Pretty Not Okay,’ But Apparently Silencing Satire About Xi Jinping Is Pretty Okay

from the pretty-not-okay dept

As a rule, it’s a good idea to be particularly suspicious of defenses of censorship that — coincidentally — materially benefit the people espousing them. In this case, the argument in favor of censorship is coming from founder and CEO of AI image generator Midjourney, David Holz. And Holz makes clear that he is willing to exempt Xi Jinping from the tool’s capabilities to retain Midjourney’s viability in China.

That’s right: Xi Jinping, one of the most powerful and repressive government officials in the world and most deserving of political skewering and mockery will be one of the few exempt from it, at least where Midjourney is concerned. Some other terms are restricted, though Holz won’t make the list public — “Afghanistan” for example, and now some depictions of arrests after the fake Donald Trump arrest fiasco — but Holz reportedly treats China as a unique case.

His quote about it is a doozy. From The Washington Post:

But the year-old company, run out of San Francisco with only a small collection of advisers and engineers, also has unchecked authority to determine how those powers are used. It allows, for example, users to generate images of President Biden, Vladimir Putin of Russia and other world leaders — but not China’s president, Xi Jinping.

“We just want to minimize drama,” the company’s founder and CEO, David Holz, said last year in a post on the chat service Discord. “Political satire in china is pretty not-okay,” he added, and “the ability for people in China to use this tech is more important than your ability to generate satire.”

He wants you to simultaneously believe that his program is so important that it must do whatever is necessary to remain accessible to people within China, but so unimportant that it doesn’t matter if fundamental political expression about one of the most powerful authoritarians in the world can’t be created on it. It doesn’t add up.

It’s no surprise that a tech CEO would be willing to make trade-offs for the Chinese market. At this point, it’s more surprising if one won’t do so. But Holz’s position is particularly careless and reveals an increasingly serious threat to free expression on and offline today: individual countries’ censorship laws, particularly those of powerful countries like China, are setting global rules sometimes enforced by tech companies anxious to display their compliance. It’s not just Midjourney’s China-based users that can’t satirize Xi Jinping — that rule applies to users everywhere, even in the United States.

Local laws are suddenly not so local anymore, and people like Holz have no qualms about aiding their illiberal international spread.

What this means in practice is that authoritarian leaders don’t just get to subject their own countries to repressive laws limiting political speech. They also get to set the rules for global communities which are not, and should not be, under any expectations to abide by them. Zoom engaged in such practices in 2020 when it applied Chinese law to users outside mainland-China, shutting down online Tiananmen memorials held by users in Hong Kong and the United States. In response to well-deserved criticism, Zoom announced it would no longer allow Chinese law to dictate policies outside mainland China. Midjourney took notes, it seems, and learned a different lesson.

Holz’s exact words were “the ability for people in China to use this tech is more important than your ability to generate satire,” but his meaning was clear: Midjourney’s interest in being accessible in China is more important than its users’ interest in engaging in political expression.

This acquiescence signals to authoritarians of all sorts that if they want to control their image on the global internet, ramping up repressive efforts at home will be rewarded. As if they needed more incentive. Oversee a large enough financial market and censor enough people and you, too, may be able to control your reputation on the global internet.

Will Midjourney stop with just Xi Jinping? Or should we expect satire of Prime Minister Narendra Modi, for example, to be next on the chopping block if Midjourney wants access to an increasingly unfree India?

Lastly, Holz may argue that he’s helping Chinese citizens — and not just his own company — by attempting to ensure that Midjourney will be available in China. But his claim that he wants to preserve “the ability for people in China” to use this tech is paternalistic in a way Holz doesn’t seem to realize. Chinese citizens, after all, may themselves want to use Midjourney to satirize their own government. Why does their freedom to satirize their ruler matter less than the freedom of the rest of the world to mock their leaders?

In fact, in the later months of 2022, protesters in cities across China held up blank sheets of paper in country-wide demonstrations to protest not just the country’s restrictive COVID policies, but the many things that Chinese citizens aren’t allowed to voice. This censorship is a result of oppressive and wide-ranging governmental control over what they can say in every forum, online and off. But it’s reinforced when foreign companies, in this case a U.S.-based AI image generating tool, are all too eager to do their part in enforcing those restrictions — not just on the population legally bound by them, but on the rest of the world, too.

Companies like Midjourney may be the vanguard of new technology and the changing internet. But censorship is nothing new, and they won’t change the game by willingly conducting reputation management for authoritarian governments.

That, one might say, is “pretty not-okay.”

Sarah McLaughlin is Senior Scholar, Global Expression at the Foundation for Individual Rights and Expression.

Filed Under: ai, censorship, china, david holz, free speech, generative ai, political speech, satire, xi jinping
Companies: midjourney

Seattle Times, Brands Complain Over Senate Campaign Ad That Is Clearly Protected Speech

from the c'mon-guys dept

There is something about when corporate brands get used in political advertisements that seems to make everybody forget about the very concept of fair use or international equivalents. One previous example would be when a bunch of foodstuff brands claimed trademark infringement over an anti-littering campaign in Canada, arguing that the use of their own packaging in photographs was somehow a trademark violation. It wasn’t, but that particular city campaign caved anyway.

But this all gets way more frustrating when an organization that depends on the First Amendment to exist decides to ignore its primacy over a political ad. And that is exactly what happened between the Seattle Times newspaper and Tiffany Smiley, who is running for the Senate in Washington. The Times, along with Starbucks and the Seattle Seahawks, complained about an ad described below. The Times went so far as to send a cease and desist notice to Smiley’s campaign.

In the challenged 30-second campaign ad, Smiley begins by pointing to a shuttered Seattle Starbucks and saying, “These doors are closed because it’s too dangerous to ask employees to work here anymore.” Then, while she says that opponent Murray has “spearheaded reckless policies,” the Seattle Times logo and headline appear, saying, “Seattle’s Awful August Shows the City Continues to Backslide on Crime.”

Similarly, when Smiley complains that the city is suffering from “so much crime that you can’t even get a cup of coffee from the hometown shop on Capitol Hill, even if you can still afford it,” another Times headline appears that underscores her point. This one reads, “Starbucks to Close 5 Seattle Stores Over Safety Concerns.”

This is 100% a textbook case of fair use. And the Seattle Times should know that. Does know that. Certainly whatever lawyer crafted the C&D knows that. The branding was used as part of political speech and they were accurately represented in the advertisement. Smiley is also not competing with any of those brands. The Times complaint was that it had actually endorsed Smiley’s opponent and suggested the use in the advertisement implied an endorsement from the Times. But it doesn’t. At all.

And regardless, this all still amounts to protected speech.

Joel Ard is a Washington state-based lawyer who has experience with intellectual property and fair use law. After viewing the ads, he told The Center Square Thursday in a phone interview, “It’s so blatantly fair use that if someone wanted to make this claim in federal court, they’d likely be sanctioned for it.”

Uh huh. And the real headache-inducing part of this whole story is that the complaint is coming from a newspaper that absolutely relies on the First Amendment and fair use to do what it does. Would the Times like this flipped around? Should the Smiley campaign be able to control when its candidate appears in the paper? Should it be able to keep the paper’s website from showing Smiley’s political ads and commenting on them?

Of course not! But Smiley’s speech is every bit as protected as the Seattle Times’. And while I normally roll my eyes when politicians claim media bias in most circumstances, when Smiley says this…

“While unfair and bias reporting and commentary is likely protected by the First Amendment…that speech protection does not apply to providing corporate resources to a campaign,” explained the complaint letter to the FEC by Charlie Spies and Katie Reynolds, co-counsel for the Smiley for Washington campaign. “What is illegal is for [the Seattle Times] to provide its resources to Patty Murray, and her campaign committee People for Patty Murray, while at the same time denying such resources to her opponent.”

…it’s kind of hard to argue she doesn’t have a point. Her opponent, Murray, also uses Seattle Times branding in her ads without complaint.

Yeesh, folks, you’re a newspaper. Be better than this.

Filed Under: fair use, political ads, political speech, tiffany smiley, trademark
Companies: seattle times

Thankfully, Jay Inslee's Unconstitutional Bill To Criminalize Political Speech Dies In The Washington Senate

from the don't-criminalize-free-speech dept

Over the last few years, it’s been depressing to see politicians from both major political parties attacking free speech. As we noted last month, Washington state governor Jay Inslee last month started pushing a bill that would criminalize political speech. He kept insisting that it was okay under the 1st Amendment because he got a heavily biased constitutional lawyer, Larry Tribe, to basically shrug and say “maybe it could be constitutional?” But the bill was clearly problematic — and would lead to nonstop nonsense lawsuits against political candidates.

Thankfully, cooler heads have prevailed in the Washington Senate and the bill has died. The bill’s main sponsor is still insisting that it would survive 1st Amendment scrutiny, but also recognized that it just didn’t have enough political support:

State Sen. David Frockt (D), who sponsored the bill, said, “We have to respect that the bill in its current form did not have enough support to advance despite the care we took in its drafting through our consultation with leading First Amendment scholars.”

Inslee, for his part, still insists something must be done:

After the bill was defeated on Tuesday, Inslee said in a statement, “We all still have a responsibility to act against this Big Lie … we must continue to explore ways to fight the dangerous deceptions politicians are still promoting about our elections.”

And, look, I don’t disagree that the Big Lie about the 2020 election is a problem. But you don’t solve problems by censoring 1st Amendment protected speech. That never ends well. At all.

Filed Under: 1st amendment, election misinformation, free speech, jay inslee, lies, misinformation, political speech, washington

President Of France Sues Citizen Over Billboard Comparing Macron To Hitler

from the is-this-really-your-first-time,-Emmanuel? dept

Some countries still have laws that forbid insulting political leaders. But you kind of assume enforcement of these laws will be left to the Erdogans and Dutertes of the world.

Apparently not. In France, where free speech protections are mostly known for their exceptions, President Emmanuel Macron has apparently been so insulted that it’s resulted in the government taking legal action against a citizen armed with nothing more than an overused comparison and a handful of billboards. (h/t Sarah McLaughlin)

French President Emmanuel Macron is suing a billboard owner who depicted him as Adolf Hitler to protest COVID-19 restrictions.

Michel-Ange Flori, who owns about 400 billboards in the southern département of the Var, wrote on Twitter on Wednesday: “I have just learnt that I will be heard at the Toulon police station tomorrow following a complaint by the president of the Republic.”

“So in Macronia you can make fun of the prophet’s ass, that’s satire, but to make the president look like a dictator is blasphemy,” he added.

The offending poster portrays Macron in the uniform of Nazi leader Hitler, with a small moustache, a lock on his forehead and the acronym of the presidential movement LREM turned into a swastika. A message reads: “Obey, get vaccinated.”

Insulting the president is no longer a criminal offense in France. That law was amended in 2013 after the European Court of Human Rights condemned the law in a ruling. But the president can still take action against alleged defamation, like any regular citizen. But, unlike regular citizens, the president’s complaints are handled by government prosecutors and apparently involve local law enforcement.

To be in power is to invite criticism. The correct response is to take it, not prosecute it. But the French government held onto its criminalization of insulting political leaders for more than a century and only amended it after it was forced to by a court decision.

But this was perhaps to be expected from the French government. After all, it could barely be bothered to do anything more than indulge in a photo op in the wake of the murders of contributors to satirical publication Charlie Hebdo by Islamic extremists. And it followed up this blatant and literal attack on free speech by arresting a local comedian for his anti-Semitic statements.

The explanation by the government’s legal team doesn’t make anything better. It simply says Macron was offended and wanted to sue.

Jean Ennochi, a lawyer for Macron, said the legal complaint was filed for Macron in a personal capacity “because of the offensive nature of the comparison of the President of the Republic with Adolf Hitler”.

A representative of Macron’s party said it had filed a separate complaint alleging insult and incitement of hatred.

Obviously, being compared to Hitler isn’t flattering. But it’s the rare political leader who makes it through their tenure in office without being compared to Hitler at some point. Obviously, there’s only one Hitler and thousands of politicians who’ve done nothing more harmful than anger some citizens by being on the “wrong side,” or supporting the “wrong” policies, or merely holding a position of power. A ham-fisted comparison doesn’t “incite” hatred. It only affirms the hatred some French citizens already feel towards Macron. It definitely shouldn’t result in lawsuits, law enforcement involvement, and the deployment of government prosecutors.

Filed Under: adolf hitler, billboards, emmanuel macron, france, free speech, hate speech, lawsuits, michel-ange flori, political speech

Superior Court Dumps BS Charges Brought Against New Jersey Homeowner For Her 'Fuck Biden' Signs

from the if-not-superior,-at-least-an-improvement-over-the-last-court dept

Last week, a New Jersey municipal court judge sided with the town of Roselle Park, New Jersey, and its decision to fine a homeowner for “obscene” signs she had in her yard. The signs weren’t obscene in any legal sense of the word — not even under the ordinance the town claimed she had violated. When the homeowner refused to back down, the town started finding her $250/day.

The homeowner, Patricia Dilascio, tried to fight back, challenging the citation in municipal court. Unfortunately for her, the presiding judge misread the law and completely ignored the First Amendment to back the town government and its inexplicable decision to prosecute a handful of “Fuck Biden” signs. According to the town’s mayor, “there’s no place for profanity by a school and school children” — a statement that can only be made by someone who’s never overhead the things said by school kids when they think no adults are listening.

The judge, however, should have been able to read the law and follow a whole bunch of precedent from the nation’s top court — precedent that says the First Amendment firmly protects political speech, even when it includes the word “fuck.” In the view of this court, a balance needed to be struck between protecting free speech and sparing hypothetical parents from having to explain the f-word to their hypothetical children.

With everyone with any power being stupid about this, the ACLU stepped in to take the case. And that seems to have prompted immediate results.

The Superior Court, Law Division today vacated charges against a Roselle Park resident, represented by the ACLU-NJ, who was cited for violating the town’s obscenity ordinance after displaying signs that read “Fuck Biden” on her property.

The Superior Court, unfortunately, did not serve up an opinion strongly protecting free speech rights or excoriating the judge who had mishandled the original charges. But it did move fast once the town dismissed the ticket and agreed not to try to collect any fines.

This likely wouldn’t have happened without the ACLU stepping in to help even out the balance of power. When it was just a town beating up on a resident for political speech, the mayor, Joseph Signorello, could not have been more sure of his rightness, calling the judge’s blown call a “win for decency.” But with the case gaining national attention — and not a single person who knows anything about the First Amendment willing to side with him — the only way to slow the bleeding was to abandon ship before it became the foundation for a civil rights lawsuit the town was certain to lose.

But even after agreeing to drop the charges, the mayor seems compelled to have the last word. And it’s just as moronic as his opening salvo.

The mayor, Joseph Signorello III, called it a “moral loss” for the borough.

“Those signs are offensive, and were I a neighbor, I would be offended,” said Mr. Signorello, a Democrat.

“You cannot legislate decency,” he added, “and I think that’s a sad reality.”

Ohhhh… but you thought you could! I mean, that was the point of this misuse and apparently deliberate misreading of the town’s obscenity statute. And somehow your town was blessed with the assistance of a judge just as concerned about children and just as dismissive of civil liberties as you are! Sure, it’s too bad you’re both wrong, but you guys had a thing going for a bit. Try to enjoy your memories of the calm before the shitstorm, when everything was full of promise and possibilities.

Nice, isn’t it?

Well… knock it off. Those days are over. Stop living in the past. Welcome back to America, where criticism of government officials is pretty much the poster boy for the First Amendment. There are better things to do with your town’s time and money than waste it on protecting hypothetical children from the nonexistent threat of posted profanities.

Filed Under: 1st amendment, free speech, new jersey, patricia dilascio, political speech, roselle park, yard signs
Companies: aclu

Judge Ignores First Amendment, Misreads Town Law, While Ordering Resident To Remove 'Fuck Biden' Signs

from the I-guess-we're-extending-ignorance-of-the-law-privileges-to-judges-now dept

A municipal court judge in New Jersey who apparently doesn’t understand either the First Amendment or local ordinances has just ordered a resident to take down some f-bomb-laden signs from her yard. (h/t Peter Bonilla)

A municipal judge on Thursday ruled that a Roselle Park homeowner’s owner’s anti- President Biden flags including the F-bomb on her fence were obscene and must be removed because they violated a borough ordinance.

Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine. Patricia Dilascio is the property owner but her daughter, Andrea Dick, had the signs, three of which include the F-word, on display.

The signs, which can be seen in this photo, are certainly colorful in terms of language, and very definitely convey their owner’s displeasure with the current regime. However, it would appear they do not violate the ordinance cited by the judge, who also claimed to be all for protecting free speech rights while issuing an order that violates those rights. According to Judge Gary Bundy, free speech is not “absolute” and the town’s law does not “abridge or violate” the First Amendment rights of the signs’ owner.

It is clear from state law and statutes that we cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.

Well, that’s true, but only if you insist on limiting your analysis to superlatives, as this judge did. The town’s law does not abridge the property owner’s First Amendment rights. But this application of the law certainly seems to. The phrase “Fuck Biden” — which appears on three different signs — doesn’t actually violate the ordinance the town of Roselle Park claims was violated. The law forbids the public display of “obscene material.” Here’s the law’s definition of that term:

The word “obscene” shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole:

a. Appeals to the prurient interest;

b. Depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and

c. Lacks serious literary, artistic, political or scientific value.

Given the “and” between b. and c. and the phrase “when considered as a whole,” these signs would need to violate all three clauses to be considered obscene. “Fuck Biden” seems pretty clearly “political,” even if the value of the sentiment is somewhat debatable. But there’s nothing sexual or prurient about this use of the word “fuck,” which would be taken by literally nobody to mean the property owner is suggesting someone should engage in a sexual act with the current President.

We certainly don’t expect municipal courts to be run by Constitutional scholars or attorneys with years of experience defending civil rights, but we should expect appointed judges to at least keep up with the last 50 years of Supreme Court precedent (including some recent decisions) determining that the word “fuck” — especially when used in conjunction with political issues — is definitely protected speech.

But even the town’s mayor seems to believe residents’ rights end when public officials begin to get offended on behalf of rhetorical minors.

“Today was a win for the borough and decency,” Signorello, the mayor, said in a statement to NJ Advance Media. “While we respect the views of our residents, there’s no place for profanity by a school and school children.”

It was neither, Mayor Signorello. It was a win for people who still think the word “fuck” has the innate power to tear apart the fabric of society. It was a win for people that think the only speech that should be protected is speech they like or agree with.

The judge is no better.

The judge, while handing down his ruling and sentencing, rhetorically asked if a balance could be found between the homeowner’s freedom of speech and a mother having to explain what the f-word means to their child.

“It’s a swear word” would be all the explanation most kids need. And most kids won’t need an explanation because they’re already familiar with the list of words not used in polite society. Judge Bundy seems to believe he’s presiding over a Mayberry-esque community that still has milkmen and separate beds for husbands and wives, rather than a 2021 New Jersey town that’s located in a state best known for mob violence, corrupt politicians, and residents considered only slightly less terrible than Philadelphians.

This is a dumb decision and it’s supported by people saying even dumber things than the judge who blew this Constitutional call. The decision can be appealed and definitely should be. The ordinance doesn’t say what the judge says it does, and the First Amendment still says what it has always said. For the moment, the signs remain up, which presumably means the imaginary uncomfortable family discussions of f-bombs will have to continue until this issue is finally resolved.

Filed Under: 1st amendment, free speech, new jersey, obscenity, political speech, roselle park

Senator Steve Daines Decides To Spit On The 1st Amendment Again: Wants To Ban Moderation Of Politicians

from the politicians-aren't-a-protected-class-steve dept

I’m beginning to think that Montana Senator Steve Daines really, really doesn’t like the 1st Amendment. Instead, he likes to wrap himself in a faux American flag as he pretends to be patriotic, while attempting to stamp out the rights the 1st Amendment provides to Americans. Last week, we wrote about his attempt to amend the Constitution (specifically, chipping away at the 1st Amendment), to make flag burning illegal.

This week, he decided to just spit on the 1st Amendment itself and introduce yet another unconstitutional social media moderation bill that would amend Section 230. Called the “Preserving Political Speech Online Act,” the bill does a few different things, but the key one seems to be… to make politicians like himself a special protected class. Because, Senators like himself, worth over $30 million, clearly are an oppressed class.

There’s some stuff about how if you take political advertisements from some candidates you have to take them from all candidates. But the really sketchy stuff is in how it modifies Section 230. It would change Section (c)(2) — the part of Section 230 that is rarely relied upon, regarding “good faith” blocking of content — such that the “otherwise objectionable” bit is deleted, and replaced with “threatening or promoting illegal activity.” It would also remove the line that sites are protected for blocking material “whether or not such material is constitutionally protected.”

Of course, this misunderstands the nature of both Section 230 (and how (c)(1) already protects most moderation) and the 1st Amendment, which already protects most content moderation editorial choices as well. But, then Daines has to take it a step further and make absolutely sure his bill is blatantly unconstitutional. Because it also adds in a prohibition on certain types of moderation. It says you can no longer moderate “political speech.” Apparently Daines wants to make sure all Nazis are protected when they promote fascism. His bill would add in this bit of unconstitutional garbage:

PROHIBITION OF BAD FAITH BLOCKING AND SCREENING.?

> ??(i) IN GENERAL.?For purposes of subparagraph (A)(i), it shall not be considered good faith for a provider of an interactive computer service to block, censor, or screen material on the grounds of race, color, religion, sex, national origin, or political affiliation or speech

Now, race, color, religion, sex, and national origin are already protected classes. Political affiliation is not. Nor should it be. And, flat out saying that you’re regulating speech here should have raised all of the 1st Amendment alarm bells possible. But it did not. Because this is not a serious attempt at serious policy making from a serious person. This is grandstand culture warrioring from a silly politician with nothing better to do than rile up an ignorant, silly base.

Amusingly, there’s an exemption on that stuff for a website that is “dedicated to a specific issue, policy, belief, or viewpoint.” So… if you set up a site specifically for Nazis, you can now ban people who don’t support fascism. But the webhost hosting the Nazi focused site, which is open generally to the public, cannot ban the Nazi website. Is that really what Daines wants?

And, left unsaid so far, is that all of this is based on a total myth that anyone is being moderated for their political viewpoints. They are not. People are being moderated for violating policies such as by spreading mis- and disinformation, harassing others, trolling others, and other such general mayhem. No one is being moderated for supporting any standard political viewpoints. It’s a myth that fools like Steve Daines embrace because to admit the truth would be to admit that their most vocal supporters are ignorant rubes and assholes.

Filed Under: 1st amendment, flag burning, free speech, political speech, politicians, protected class, section 230, steve daines

UK Politician Demands The Impossible: Social Media Companies Must Not Take Down Political Speech, But Must Block Disinformation

from the say-what-now?!? dept

UK Parliament Member Damian Collins has been pushing dangerous nonsense about social media content moderation for a while now. A couple years ago he held a theatrical hearing on fake news that was marred by the fact that Collins himself was spreading fake news. Last year, he announced incredibly dangerous ideas about “stopping fake news” on websites.

And now he’s doing something even stupider. According to the Financial Times, Collins is working with Boris Johnson on forcing a “duty of impartiality” on websites, saying that they cannot moderate political content:

Downing Street is pushing for big tech companies to be subject to a ?duty of impartiality? to prevent political bias as part of legislation to regulate dangers on the internet.

How the fuck would that work in practice? Not well, I imagine. And then Collins decided to make it worse. Responding to a question from Jeff Jarvis on Twitter about this “duty of impartiality,” Collins uttered what might be the stupidest thing I’ve ever seen a politician utter regarding content moderation (and we’ve seen a lot of stupid things said):

He said:

In my view social media companies must not censor political speech but they have a responsibility to act against known sources of harmful disinformation wherever it comes from, including when it’s from a President

Got that? The rule is that you can’t takedown any political speech, but you have a duty to remove disinformation, including when it’s from the President. Just take a second and marvel at the pure, unadulterated stupidity of that statement. It presumes that there’s a bright line between “political speech” and “harmful disinformation.” Anyone who knows anything knows that’s not true at all. A ton of “political speech” is actually “harmful disinformation.”

Hell, I’d argue that Collins’ idea that this is easily distinguished is, in itself, “harmful disinformation.” Should Twitter remove it? Or is that political speech.

Basically, what this comes down to is the same old shit. So many people think that social media companies should be forced to keep up the content they like, and forced to takedown the content they disagree with. It never occurs to them that their own personal tastes differ from others and that there’s no way to write a regulation that takes into the account the bad taste of some clueless politicians.

Oh, and it gets worse. You see, MP Damian Collins has another possible solution. He’s launched his own fact checking service, called “Infotagion,” promising to tell people what is disinformation that must be removed, and what’s okay.

In other words, he’s positioning himself to be the Lord High Internet Censor of the UK.

We’ve discussed before the differences between content moderation and censorship, and let’s be quite clear here: what Collins is proposing is not content moderation, but censorship. He’s set up his own fact checking service, and seems to think that he can magically decide which content sites must all block, and which content they must allow. It’s not hard to see how that kind of power will be immediately and frequently abused by petty and small minded politicians.

Filed Under: content moderation, damian collins, disinformation, duty of impartiality, fake news, free speech, political speech, uk

Bogus Automated Copyright Claims By CBS Blocked Super Tuesday Speeches By Bernie Sanders, Mike Bloomberg, And Joe Biden

from the copyright-as-censorship dept

Another day, another example of copyright out of control. The latest, as highlighted by Matthew Keys, is that bogus (almost certainly automated) copyright claims by CBS ended up blocking a live stream of a Bernie Sanders speech, but similar notices also interrupted speeches by Mike Bloomberg and Joe Biden.

It’s not difficult to guess at what’s going on here: most of these streams were using “pool” cameras that anyone can tap into and use. CBS was using the same stream as everyone else, but because copyright must rule everything, CBS assumes that anything it streams, it holds the copyright on — and sends automated notices to places like Twitter and Facebook to stop people from streaming live off of CBS News. But, here, it was CBS using someone else’s feed — but thanks to the nature of copyright, we get a situation where Presidential candidates can’t even live stream their own speeches.

This was the kind of thing we’ve warned about, specifically in the context of the EU’s Copyright Directive, which will effectively require a filter like this to be functioning at all times on basically all platforms. The fact that it will inevitably catch the wrong things — like here — is something that never seems to concern the Hollywood types who push for these laws and technologies to be used. Yet here we have Presidential candidates not able to broadcast themselves.

This is especially ironic for Joe Biden, considering that he’s long been one of Hollywood’s biggest supporters when it comes to pushing ever more draconian copyright law. So, perhaps, he got what he deserved.

Filed Under: automated takedowns, bernie sanders, censorship, copyright, eu copyright directive, filters, free speech, joe biden, mike bloomberg, political speech
Companies: cbs, facebook, twitter