politicians – Techdirt (original) (raw)

from the the-test-is-too-broad dept

After several years of litigation across the federal appellate courts, the U.S. Supreme Court in a unanimous opinion has finally crafted a test that lower courts can use to determine whether a government official engaged in “state action” such that censoring individuals on the official’s social media page—even if also used for personal purposes—would violate the First Amendment.

The case, Lindke v. Freed, came out of the Sixth Circuit and involves a city manager, while a companion case called O’Connor-Ratcliff v. Garnier came out of the Ninth Circuit and involves public school board members.

A Two-Part Test

The First Amendment prohibits the government from censoring individuals’ speech in public forums based on the viewpoints that individuals express. In the age of social media, where people in government positions use public-facing social media for both personal, campaign, and official government purposes, it can be unclear whether the interactive parts (e.g., comments section) of a social media page operated by someone who works in government amount to a government-controlled public forum subject to the First Amendment’s prohibition on viewpoint discrimination. Another way of stating the issue is whether a government official who uses a social media account for personal purposes is engaging in state action when they also use the account to speak about government business.

As the Supreme Court states in the Lindke opinion, “Sometimes … the line between private conduct and state action is difficult to draw,” and the question is especially difficult “in a case involving a state or local official who routinely interacts with the public.”

The Supreme Court announced a fact-intensive test to determine if a government official’s speech on social media counts as state action under the First Amendment. The test includes two required elements:

the official “possessed actual authority to speak” on the government’s behalf, and
the official “purported to exercise that authority when he spoke on social media.”

Although the court’s opinion isn’t as generous to internet users as we had asked for in our amicus brief, it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

This issue has been percolating in the courts since at least 2016. Perhaps most famously, the Knight First Amendment Institute at Columbia University and others sued then-president Donald Trump for blocking many of the plaintiffs on Twitter. In that case, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s holding that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. EFF has also represented PETA in two cases against Texas A&M University.

Element One: Does the official possess actual authority to speak on the government’s behalf?

There is some ambiguity as to what specific authority the Supreme Court believes the government official must have. The opinion is unclear whether the authority is simply the general authority to speak officially on behalf of the public entity, or instead the specific authority to speak officially on social media. On the latter framing, the opinion, for example, discusses the authority “to post city updates and register citizen concerns,” and the authority “to speak for the [government]” that includes “the authority to do so on social media….” The broader authority to generally speak on behalf of the government would be easier to prove for plaintiffs and should always include any authority to speak on social media.

Element One Should Be Interpreted Broadly

We will urge the lower courts to interpret the first element broadly. As we emphasized in our amicus brief, social media is so widely used by government agencies and officials at all levels that a government official’s authority generally to speak on behalf of the public entity they work for must include the right to use social media to do so. Any other result does not reflect the reality we live in.

Moreover, plaintiffs who are being censored on social media are not typically commenting on the social media pages of low-level government employees, say, the clerk at the county tax assessor’s office, whose authority to speak publicly on behalf of their agency may be questionable. Plaintiffs are instead commenting on the social media pages of people in leadership positions, who are often agency heads or in elected positions and who surely should have the general authority to speak for the government.

“At the same time,” the Supreme Court cautions, “courts must not rely on ‘excessively broad job descriptions’ to conclude that a government employee is authorized to speak” on behalf of the government. But under what circumstances would a court conclude that a government official in a leadership position does not have such authority? We hope these circumstances are few and far between for the sake of plaintiffs seeking to vindicate their First Amendment rights.

When Does the Use of a New Communications Technology Become So “Well Settled” That It May Fairly Be Considered Part of a Government Official’s Public Duties?

If, on the other hand, the lower courts interpret the first element narrowly and require plaintiffs to provide evidence that the government official who censored them had authority to speak on behalf of the agency on social media specifically, this will be more difficult to prove.

One helpful aspect of the court’s opinion is that the government official’s authority to speak (however that’s defined) need not be written explicitly in their job description. This is in contrast to what the Sixth Circuit had, essentially, held. The authority to speak on behalf of the government, instead, may be based on “persistent,” “permanent,” and “well settled” “custom or usage.”

We remain concerned, however, that if there is a narrower requirement that the authority must be to speak on behalf of the government via a _particular communications technology_—in this case, social media—then at what point does the use of a new technology become so “well settled” for government officials that it is fair to conclude that it is within their public duties?

Fortunately, the case law on which the Supreme Court relies does not require an extended period of time for a government practice to be deemed a legally sufficient “custom or usage.” It would not make sense to require an ages-old custom and usage of social media when the widespread use of social media within the general populace is only a decade and a half old. Ultimately, we will urge lower courts to avoid this problem and broadly interpret element one.

Government Officials May Be Free to Censor If They Speak About Government Business Outside Their Immediate Purview

Another problematic aspect of the Supreme Court’s opinion within element one is the additional requirement that “[t]he alleged censorship must be connected to speech on a matter within [the government official’s] bailiwick.”

The court explains:

For example, imagine that [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to [his] state authority—because he had none.

But the average constituent may not make such a distinction—nor should they. They would simply see a government official talking about an issue generally within the government’s area of responsibility. Yet under this interpretation, the city manager would be within his right to delete the comments, as the constituent could not prove that the issue was within that particular government official’s purview, and they would thus fail to meet element one.

In our brief, we argued for a functional test, where state action would be found if a government official were using their social media account in furtherance of their public duties, even if they also used that account for personal purposes. This was essentially the standard that the Ninth Circuit adopted, which included looking at, in the words of the Supreme Court, “whether the account’s appearance and content look official.” The Supreme Court’s two-element test is more cumbersome for plaintiffs. But the upside is that the court agrees that a social media account’s “appearance and function” is relevant, even if only with respect to element two.

Reality of Government Officials Using Both Personal and Official Accounts in Furtherance of Their Public Duties Is Ignored

Another problematic aspect of the Supreme Court’s discussion of element two is that a government official’s social media page would amount to state action if the page is the “only” place where content related to government business is located. The court provides an example: “a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page” and it wasn’t also available on the city’s official website. The court further discusses a new city ordinance that “is **not available elsewhere,**” except on the official’s personal social media page. By contrast, if “the mayor merely repeats or shares otherwise available information … it is far less likely that he is purporting to exercise the power of his office.”

This limitation is divorced from reality and will hamstring plaintiffs seeking to vindicate their First Amendment rights. As we showed extensively in our brief (see Section I.B.), government officials regularly use both official office accounts and “personal” accounts for the same official purposes, by posting the same content and soliciting constituent feedback—and constituents often do not understand the difference.

Constituent confusion is particularly salient when government officials continue to use “personal” campaign accounts after they enter office. The court’s conclusion that a government official “might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection” is thus highly problematic. The court is correct that government officials have their own First Amendment right to speak as private citizens online. However, their constituents should not be subject to censorship when a campaign account functions the same as a clearly official government account.

One very good aspect of the Supreme Court’s opinion is that if the censorship amounted to the blocking of a plaintiff from engaging with the government official’s social media page as a whole, then the plaintiff must merely show that the government official “had engaged in state action with respect to any post on which [the plaintiff] wished to comment.”

The court further explains:

The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.

We are pleased with this language and hope it discourages government officials from engaging in the most egregious of censorship practices.

The Supreme Court also makes the point that if the censorship was the deletion of a plaintiff’s individual comments under a government official’s posts, then those posts must each be analyzed under the court’s new test to determine whether a particular post was official action and whether the interactive spaces that accompany it are government forums. As the court states, “it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” This is in contrast to the Sixth Circuit, which held, “When analyzing social-media activity, we look to a page or account as a whole, not each individual post.”

The Supreme Court’s new test for state action unfortunately puts a thumb on the scale in favor of government officials who wish to censor constituents who engage with them on social media. However, the test does chart a path forward on this issue and should be workable if lower courts apply the test with an eye toward maximizing constituents’ First Amendment rights online.

Originally posted to the EFF Deeplinks site.

Filed Under: 1st amendment, blocking, criticism, free speech, lindke v. freed, o'connor-ratcliffe v. garnier, politicians, social media, supreme court

Homicide Rates Hit Another Historical Low Despite What You May Have Heard Pretty Much Everywhere

from the so-sorry-the-news-isn't-worse dept

The banal will never capture as much attention as the lurid.

I’m sure that this opening sentence will be seized upon by the many critics of my posts criticizing cops. So be it. Just be aware that we expect our public servants to be banal at almost any cost. That’s a sign of competence and restraint. Anything lurid suggests a critical failure.

But back to the point at hand: politicians, the media, and a variety of “think about the children” groups are always insistent the current year is the worst year, in terms of criminal activity. This persistent narrative not only enriches already affluent cop shops, but it allows citizens to see the worst in people at all times, especially if those people are of a different race, religion, socioeconomic status, or don’t appear to be beholden to outdated ideas about the two sexes.

Cops are always eager to portray the current criminal climate to be the worst ever. And that’s really fucking weird. You’d think cops would want to celebrate crime decreases because it might indicate they’re actually doing their jobs. Instead, they act like “tough on crime” politicians, amplifying any blip in crime stats to insist this this why they need more funding/armored vehicles/forfeiture money/surveillance tech.

But the facts speak for themselves. And they speak clearly and coherently because they’re based on facts handed over to the DOJ and compiled/collated by the FBI. There’s no plausible deniability here. The only hitch is that there’s not more participation in the FBI’s crime data program.

So, despite what you may have heard from TikTok and/or your local newscasters, this is not the most dangerous time to be alive. To capitalize on your death wish, you’d need to go back at least 40 years. In some cases, you’d have to hit the “four score and seven years ago” mark. The latest stats show we’re still enjoying historic lows in violent crime rates and it would likely take another pandemic to change that.

Here’s the good news so many self-interested parties don’t want to hear, brought to us by Tim Arango and Campbell Robertson of the New York Times:

Detroit is on track to record the fewest murders since the 1960s. In Philadelphia, where there were more murders in 2021 than in any year on record, the number of homicides this year has fallen more than 20 percent from last year. And in Los Angeles, the number of shooting victims this year is down more than 200 from two years ago.

These major cities aren’t outliers. The NYT points out that, in some cases, rates remain higher than they were pre-pandemic. But in several cities, homicide rates have dipped back down to historic lows, indicating several cities are safer than they’ve been in several decades.

The city of Detroit is on track to record the lowest number of homicides since 1966, a remarkable milestone even given its substantially smaller population today.

Even cities commonly depicted as criminal playgrounds — like New York City and Chicago — are seeing double-digit drops in homicide rates. There are, of course, outliers where crime rates remain unchanged. But overall, the FBI’s latest crime data report says something positive about the state of nation — a message you won’t likely be hearing from police officials and legislators who leverage fear to sell fascism.

[A]s 2023 comes to a close, the country is likely to see one of the largest — if not the largest — yearly declines in homicides, according to recent F.B.I. data and statistics collected by independent criminologists and researchers.

But here’s one thing that hasn’t changed. Crime rates may be dropping but police officers are more violent than ever, according to data collected by Mapping Police Violence:

Those are the facts — facts even some cops are willing to impart to other cops.

The problem with these facts is that they’re always undersold by the people who have the most power or the most market share. As our own Karl Bode pointed out on Bluesky, the problem with truth isn’t that it’s the uncomfortable or not easily understood. It’s that truth can’t compete with well-funded misinformation.

As long as someone can capitalize on the mere fact that violent crime exists, this will always be a problem. But when they come at you, at least you can arm yourselves with facts like these — facts that can’t easily be dismissed because they’re not coming from some activist group, but rather directly from the Justice Department. We are, by no means, almost freed from the scourge of violent crime. But we’re in much better shape than people are being led to believe.

Filed Under: crime, crime rates, homicide, law enforcement, politicians, reporting

Predictive Policing Makes Everyone A Suspect, Even EU Officials

from the presumptive-policing-actually dept

We’ve long known so-called “predictive policing” is garbage. It’s the same old biased policing, except shinier and more expensive. Every system in place relies on data generated by policework — data instantly tainted by the things cops do, like hassling minorities, engaging in very selective enforcement, and treating people as inherently suspicious just because of where they live. These acts generate the garbage data that ensures that, when all the digital gears stop turning, more garbage data will be generated.

To highlight the worthlessness of predictive policing tools, criminal justice watchdog Fair Trials has mocked up an input tool of its own — one any site visitor can interact with and experience the faint horror of being prejudged a criminal by a set of seemingly innocuous questions.

Attend more than one school while growing up? Is your credit rating a bit too low? Have you ever witnessed a crime? Ever been the recipient of government benefits? Are you a minority? Ever spoken to the cops for any reason? Answer enough of these questions with a “yes” and you’ll head right up into “High Risk” territory — the sort of thing that tends to generate even more interactions with police officers utilizing predpol data… which then generates even more data ensuring you’ll remain on the “High Risk” list in perpetuity.

Sure, this is an extremely simplified version of software governments pay millions to purchase, but the risk factors presented are all used in predictive policing. And, as Fair Trials points out, these same sorts of systems are used by judges to determine bail amounts and sentence lengths — things that can be increased simply because a person has done nothing more than witness a crime or fallen behind on their bills.

Since it’s incredibly easy to rack up risk factors just by living your life, it’s no surprise even people with presumably the cleanest backgrounds can still find themselves listed among the troublesome by predictive policing algorithms. As Thomas Macaulay reports for The Next Web, Fair Trials’ predpol quiz has snagged a number of EU officials.

Politicians from the Socialists & Democrats, Renew, Greens/EFA, and the Left Group were invited to test the tool. After completing the quiz, MEPs Karen Melchior, Cornelia Ernst, Tiemo Wölken, Petar Vitanov, and Patrick Breyer were all identified as at “medium risk” of committing future crime.

As noted above, Fair Trials has presented a very simplified version of predictive policing software. But the questions used are very representative of how this software presents people to police officers, prosecutors, and judges. It takes a bunch of demographic data, conjures up networks of suspected criminals out of interactions, proximity and societal background, and spits out lists of high-risk people for cops to hassle. The end result is the laundering of biased policing via expensive black boxes that give the usual selective enforcement efforts a veneer of cold, hard science.

But underneath all the ones and zeroes, its basically still just cops going after poor people, minorities, foreigners, and anyone else perceived to be an easy target. Spending millions on proprietary algorithms doesn’t change a thing.

Filed Under: eu, future crime, politicians, predictive policing

from the blocking-stuff-you-don't-like-is-unconstitutional dept

No matter what you may have heard on certain social media outlets, this is how the First Amendment actually works.

Free speech “heroes” can freely curb your speech. The government, however, may not. So, if you’re a government account operating on social media services, when you fuck around, you find out. This decision [PDF] — targeting St. Louis lawmakers — reminds everyone of these uncomfortable facts. (h/t Courthouse News Service)

Social media platforms are public squares… at least as far as public servants are concerned. You may not like what your constituents have to say, but you’re not allowed to silence them. That’s what a Missouri federal court has declared, following an absurd amount of precedent that should have made it clear to the city of St. Louis (as personified by Lewis Reed, the president of the city’s Board of Alderman) that blocking a resident’s Twitter account from interacting with the city’s official account was unconstitutional.

As the order notes, the jury trial over the constitutional issues got off to a somewhat strange start… at least in terms of a civil lawsuit.

Reed appeared at trial with counsel and, when called to testify, invoked the Fifth Amendment.

To be sure, invoking the Fifth isn’t an admission of guilt. But considering the only thing at stake was a court-ordered unblocking of St. Louis resident Sarah Felts’ Twitter account, this move does seem a little strange. Given this turn of events, the court reached a compromise: Felts could submit a list of questions for the (now-former — he retired two years after this lawsuit was filed) Board of Alderman president to be answered after the trial was concluded.

Everything at issue here went down fairly innocuously. And by that I mean it was rookie night on Doomscroll.com, where people said things and other people reacted terribly by not understanding how swiftly antagonistic flotsam is swept away by the tyranny of auto refresh. Read on and be amused by the give-and-take that ultimately decided to be the equivalent of a palace coup by the Board of Aldermen president.

In March 2009, Reed created a public Twitter account (the “Account”) to “put out information for people to … let them know what I’m up to.” At times, Reed changed the Account’s handle to indicate his candidacy for office, but between March 2009 and June of 2020, the most frequently used handle was @PresReed.

On his Twitter page, Reed described himself as “Father of 4 great kids, husband, public servant, life long democrat, proud St. Louis City resident, President of the Board of Aldermen.”

Any member of the public could view Reed’s posts and either “like,” reply, or “retweet” his posts.

On January 26, 2019, a Twitter account with the handle @ActionSTL tweeted: “Reeds asked to clarify his position on @CLOSEWorkhouse. He says we need to rework out [sic] court system. Eventually says yes, he does support the demand to close the workhouse but we need to change the messaging around it.” Action St. Louis, a local, black-led advocacy organization, operates the @ActionSTL Account.

Plaintiff responded to Action St. Louis’ tweet stating: “What do you mean by ‘change the messaging around #CloseTheWorkhouse,’ @PresReed? #STLBOA #aldergeddon2019 #WokeVoterSTL.” The issue of closing the St. Louis Workhouse, a medium security institution and one of two jails in the City, was a subject of political debate in January 2019. Plaintiff was among those advocating for the Board of Aldermen to take action to close the Workhouse, as was Action St. Louis.

Plaintiff believed Reed’s statement, as reported by Action St. Louis, that “we need to change the messaging around closing the Workhouse” was an attempt to avoid dealing with the underlying issue. Plaintiff sent her tweet to ask Reed what he meant by “change the messaging” and signal to other Twitter users that they could reach Reed via Twitter.

Later in the evening of January 26, 2019, Plaintiff attempted to access Reed’s Twitter profile page and learned she had been blocked by Reed, meaning she could no longer view his tweets, or otherwise interact with his Account.

According to Reed, the board president blocked the plaintiff because he believed Felts’ question (and her instructions to contact Reed via Twitter) somehow “implied violence” against him and the Board of Aldermen. No evidence was presented that any threats — violent or otherwise — followed this interaction.

On top of that, the court notes that Reed intertwined his Twitter account with official business in 2019. The city’s website was altered to include a link to Reed’s Twitter account. This was followed by an embed of his Twitter feed. This feed remained live on the city’s website until Reed was sued by Sarah Felts, at which point it was removed, presumably by a city IT employee. Felts’ Twitter account remained blocked until after she filed the lawsuit in early 2021.

So, Reed made it clear his Twitter account was also the Board president’s account. And the victim of his careless blocking wasn’t freed from this incursion on her First Amendment rights until after she engaged in litigation. Given this series of events, it’s not unsurprising (former) Board president Reed would invoke the Fifth when testifying in front of a jury of the people he was supposed to be serving.

The opinion recounts several times Reed’s Twitter account was used to engage in city business, citing several statements related to legislation, city policy changes, and Reed’s meetings with other local and federal politicians.

All of this indicates the account run by Reed was engaged in government business and used by Reed in his position as the president of the city’s Board of Alderman. So, there’s really no question his blocking of Sarah Felts violated her rights.

At all relevant times, Reed was the final decisionmaker for communications, including the use of social media, for the Office of the President of the Board of Aldermen. At or near the time Plaintiff was initially blocked, Reed’s public Twitter account had evolved into a tool of governance. In any event, by the time the Account was embedded into the City’s website in April 2019, while Plaintiff remained blocked, the Account was being operated by Reed under color of law as an official governmental account. The continued blocking of Plaintiff based on the content of her tweet is impermissible viewpoint discrimination in violation of the First Amendment. Thus, Plaintiff is entitled to judgment in her favor on her remaining claim for declaratory relief.

That is how the First Amendment actually works. The government can’t block your Twitter account simply because it doesn’t like what you’re saying. That happened here. And, while the lawsuit concludes with only a $1.00 reward in nominal damages, it does make things better for St. Louis residents, as well as those experiencing the same sort of government bullshit elsewhere in this federal circuit. It’s another ruling that clearly states government officials can’t engage in unwarranted blocking of people officials would rather not hear from. Elected officials represent and serve everyone in their jurisdictions. They can’t constitutionally pick and choose who they want to engage with.

Filed Under: 1st amendment, blocking, free speech, government, lewis reed, missouri, politicians, sarah felts, social media

Calls For Violence Against The Press Have Paid Off: Politician Accused Of Murdering Investigative Reporter

from the an-anomaly-but-a-truly-disturbing-one dept

Given the inalienable protections this country has determined are essential to democracy, the United States has only tolerated limited violence against journalists. Most of this violence is perpetrated by law enforcement officers who feel a fully functioning democracy demands they greet documentation of their acts with force or unjustified arrests.

This calculus shifted during the Trump years as the sitting president routinely made statements portraying journalists who did not portray him in a flattering manner as enemies of democracy. When the public revolted against police violence, Trump sent out federal officers to cow the populace back into subservience — something that often manifested as overt violence against journalists covering protests.

You don’t have to be a Trump fan to consider journalists dangerous. All you have to be is on the wrong side of history — even if it’s only hyper-local history. The rhetoric against journalists has increased over the past few years, resulting in public statements by elected officials that make it appear they wish they were presiding over regions in, say, China. Or Turkey.

Portraying journalists as dangerous has finally claimed a victim. And the alleged perpetrator appears to be someone who would never espouse Trump’s anti-journalistic views, much less vote for him. But when elections are on the line, journalists are the first against the wall. Here’s Lara Kote, reporting for Politico:

Police in Las Vegas have charged a local elected official with murder in connection with the stabbing death of Jeff German, an investigative reporter with the Las Vegas Review-Journal who had spent the last few months exposing misdeeds and turmoil in the official’s office.

Clark County Public Administrator Robert Telles, a 45-year-old Democrat, was taken into custody on Wednesday after police conducted a search in his home. On Thursday, Sheriff Joseph Lombardo told reporters Telles had been charged with murder after authorities found a positive match for Telles’ DNA with the genetic material found underneath German’s fingernails.

German had been digging into Telles’ apparent misconduct, including allegations of bullying, favoritism, and an inappropriate relationship with another government official. At the time of his alleged murder, German was in the process of obtaining records from the public administrator’s office.

Telles, the murder suspect, recently lost his reelection attempt. But while still in office, he had repeatedly attacked the long-time investigative journalist on Twitter, calling him a “bully” and referring to his investigative reporting as “smear pieces.”

For these slights (and Telles’ recent loss at the polls), it appears the former county official felt the journalist needed to be killed. There’s an apparent motive. And there’s also plenty of evidence.

Surveillance footage from Friday morning, the day of the killing, showed an individual in a long-sleeved orange T-shirt with reflective strips and a broad straw hat that covered the face. Police later recovered a similar hat from Telles’ home that had been cut into pieces, as well as a pair of shoes that matched those worn by the suspect in the video, which had also been cut, likely to destroy evidence, authorities said.

Police said surveillance video showed the killer leave the crime scene before returning a few minutes later in a maroon GMC Yukon Denali — which matched the description of a car registered to Telles’ wife.

Maybe something will come out in court that alters the narrative. Maybe there was motive above and beyond what appears to be little more than a government official deciding a Murder One count was the best way to deter future reporting about alleged misconduct. But, for now, these are the facts and allegations we have to work with. And it doesn’t say anything positive about the current relationship between public officials and the members of the public who are crucial to government accountability.

Filed Under: jeff german, journalism, las vegas, murder, politicians, robert telles

The Pile On Blaming Video Games For Texas Shooting Begins

from the ready-fire-aim dept

Now that we’re encountering mass shootings in America on what appears to basically be a weekly or so clip, all the tired, made-up, bullshit talking points that get trotted out to shift blame are coming off as even more tired and made-up than they did previously. We’ve now had three mass shootings that have been all over the media in the past 3 weeks — while, by definition, there have already been over 200 mass shootings that have occurred just this year in America — all of which used a common AR-15 long-rifle weapon. Beyond that, there aren’t a ton of similarities in the shootings. One appears to have been a racist attack on an African American neighborhood, another the random desire of a sick individual to specifically shoot up an elementary school, while the most recent in Tusla thus far looks to be a more targeted killing event for reasons unknown at the time of this writing.

But, again, all three incidents have two things in common. First, multiple firearms were used, but all included an “assault-style” weapon (yes, I realize this term is problematic). Second, the pro-gun crowd has retreated to those tired talking points I mentioned in the opening. It was social media. It was rap music. And, because of course, it was video games.

And while a certain segment of the popluation will flail about to blame literally anything other than access to firearms for these gun deaths, the pile on to blame video games has begun. It began with Texas’ Dept. of Public Safety Chief Steven McGraw, who first acknowledged that police officers in the building did a whole lot of nothing while children were murdered until Border Patrol showed up, but then pivoted to the evil of “cyber gaming.”

DPS chief Steven McGraw: “We haven’t gotten into the why [motive]. We know the individual was also into cyber gaming in that regard, and group gaming.” pic.twitter.com/FhsHl4Toy5

— Andrew Kimmel (@andrewkimmel) May 27, 2022

This has to stop. The link between video gaming and mass shootings not only hasn’t been proven, but there are plenty of studies showing the potential for gaming, even violent gaming, to defuse the desire of otherwise potential shooters. To be clear, that isn’t proven either, but that isn’t really the point. The point is that there is zero reason to mention video games in this context at all, even as a throwaway comment such as McGraw’s. Other countries have violent video games and, ostensibly, whatever “cyber gaming” is. And yet they don’t have our mass shooting or gun violence problems.

But McGraw wasn’t alone. Ted Cruz made his way to the NRA Leadership Forum for a jaunty speech in which he also blamed violent video games, while the crowd he was clearly attempting to absolve of any responsibility nodded along.

Cruz tries to blame "violent online content" and "desensitizing the act of murder in video games" for America's scourge of gun violence pic.twitter.com/imIevYEyRT

— Aaron Rupar (@atrupar) May 27, 2022

I can’t make this point enough: there are responsible, thoughtful, caring gun owners in America. I have personal relationships with some. But there is nothing about trying to scapegoat video games instead of giving an inch on access to guns that is responsible. I’ve said this before, but if the NRA and their ilk simply believe that they want their toys more than they want to compromise to stop the deaths of their fellow citizens, including children, I really do wish they’d just say so. It would be horrible, but at least it would be rational.

Instead, monied interests produce fingerpointing at irrelevant targets. Perhaps we can coin that a “mass blaming”, whenever these talking points get trotted out after a mass shooting.

Filed Under: blame, gun control, mass shootings, politicians, video games

from the how-do-you-deal-with-this? dept

You may have heard that conspiracy theorist and nonsense-spouting Rep. Marjorie Taylor Greene has, not for the first time, been temporarily suspended from Twitter for passing along conspiracy theory nonsense regarding vaccines. She’s unable to tweet for 7 days. I, unfortunately, can’t find the tweet now, but back in July when she was similarly suspended for just 12 hours, I saw someone jokingly note that temporarily suspending someone like Greene was the equivalent of Twitter throwing her a fundraiser, since she would immediately turn around, play the victim, and get her gullible, duped followers to throw more money at her. And, no doubt the same is true with this suspension as well. She’s already put out a statement and the usual “conservative” media orgs are already talking about how “Twitter can’t handle the truth” or some such nonsense.

And then, of course, you have people who are reasonably ticked off at Twitter “only” temporarily suspending Greene for spreading nonsense info, rather than permanently banning her.

So, in the end, you have both ends of the political spectrum mad about this setup, and trying to spin it to their own advantage. However, once again, it really seems to highlight the impossible nature of content moderation at scale, especially when some of the parties are clearly acting in bad faith.

Twitter has its escalation policies in place, and they’re designed (reasonably!) to deal with good faith users, who might not realize they’re violating the rules or spreading dangerous disinformation. In that world, an escalating penalty system makes sense. Getting suspended for a few hours or a week generally sucks for users who actually like to use the site but it’s a sort of “cool off” period combined with a gentle nudge to be a better participant on the internet. But, of course, that system kind of breaks down when you have not just bad faith actors who are deliberately testing the boundaries of what they can get away with, but who actually benefit from the suspension and the press attention that comes with it.

At this point, some will say “well, that’s a perfect reason to just suspend such people permanently.” But, alas, that comes with its own challenges. Indeed, jumping straight to a permanent suspension only proves that the company would be treating some people differently, and would be treated by people like Greene as “proof” of “anti-conservative bias” (again, this would be bad faith, but it would allow the story to have some level of confirmation). So, Twitter can’t do that without providing what a bunch of people will see as confirming evidence. So Twitter follows its rules, and continues to escalate the punishment (eventually MTG will get permanently suspended, it seems only a matter of time).

Looked at realistically, the fact that Twitter is following its stated escalation policies, rather than doing an outright ban should be seen as evidence that it is not “biased against conservatives,” but is treating everyone the same. If you violate the company’s policies about COVID vaccines, then you go through the escalation process — whether you made a mistake in good faith or whether your a bad faith grifter. Of course, that’s not how it will play out anywhere, because no one does nuance any more.

Some might argue that the obvious bad faith nature of MTG’s arguments mean that Twitter should just have a policy of banning bad faith grifters. And that’s certainly tempting, but how do you define bad faith grifter within a policy such that a large team of content moderation professionals can apply it consistently? The problem is that you really can’t. The very nature of an escalation policy is that it does, eventually, take care of most bad faith grifters. It just takes time, and allows them to violate the rules a bunch of times before getting the final send-off.

Filed Under: bad faith, content moderation, politicians, social media
Companies: twitter

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

Why Congress Needs The Office Of Technology Assessment More Than Ever

from the bring-it-back dept

In 2015, following a tragic shooting in San Bernardino, California, Congress faced a difficult issue. The Federal Bureau of Investigations (FBI) was in possession of a locked iPhone that belonged to one of the shooters, and it wanted to gain access to that phone as part of its investigation. Members of Congress found themselves in the middle of a contentious debate over whether Apple should be required to unlock the phone to give the FBI access to its contents. During this pivotal time, Congress did not have an unbiased source of information to turn to for an explanation of the technical feasibility and societal implications of requiring Apple to enable the FBI to bypass those protections. In the absence of such a source, we were forced to rely solely on the input of the FBI and of Apple?two players who had strong, conflicting interests at play in the debate.

But that wasn?t always the case. For more than twenty years we had the Office of Technology Assessment (OTA), an independent, bipartisan agency set up to provide unbiased information on technology and its potential impacts. However, in 1995 the agency was defunded, stripping Congress of the ability to access unbiased tech advisors as we entered the digital age. Today, as Americans are feeling the effects of emerging technologies?including issues around data privacy and artificial intelligence?we are experiencing the repercussions of the decision to defund this vital piece of the Congressional support system.

Although some have suggested that the Government Accountability Office (GAO)?s new Science, Technology Assessment, and Analytics (STAA) team should fulfill the role of the OTA, or that the combination of GAO and the Congressional Research Service (CRS) can meet Congress? technology expertise needs, relying solely on GAO and CRS for all of our technology assessment needs is a short-sighted solution. Despite the potential of GAO?s new STAA team and the fine tradition of CRS, neither of these two organizations?independently or combined?fill the void left by the shuttering of the OTA. In the ecosystem of Congressional support agencies CRS summarizes; GAO evaluates; and the OTA anticipates.

During the encryption debate following the San Bernardino shooting, CRS generated a report outlining the debate and summarizing existing knowledge and laws on encryption and law enforcement investigations. GAO could have initiated a study focused on analyzing what happened and how the situation could be handled in the future. However, only the OTA is set up to anticipate this issue and have the foundational expertise to inform Congress about both the technological and policy questions at play when the issue arose.

Americans are starting to take notice of the lack of effective lawmaking following some of the biggest technology scandals in recent times. Without the OTA?s forward-thinking approach, Congress? ability to address the technological challenges of the present, and of the future, will fall short of what effective lawmaking during the ever-evolving digital age demands. A well-funded agency whose sole purpose is advising Congress on technology issues, free from the influence of corporate and special interests, is absolutely necessary.

Congress? technology assessment needs will only continue to grow as we work to anticipate the potential benefits and effects of emerging technologies. As we consider the use of technologies such as AI, facial recognition, quantum computing, and emerging energy storage and generation in both the private and public sectors, it is increasingly important that Congress have unbiased assessments of what is on the horizon. While CRS and GAO are well equipped to look at what is known and what has already happened, and to identify questions and gaps, the OTA?s role is to chart the way forward by generating new knowledge that answers those questions and fills those gaps.

We must make strategic investments in our ability to encourage innovation, understand its benefits, and help constituents be best equipped for the challenges emerging technologies may bring. Technology is transforming our daily lives. We should not fear it; we should be well-prepared to deal with the changes it will create?the Office of Technology Assessment will help us do just that.

Filed Under: congress, office of technology assessment, ota, politicians, tech literacy

Appeals Court: First Amendment Violation To Ban Members Of The Public From Gov't Officials' Facebook Pages

from the seems-obvious-but-let's-keep-stacking-up-the-caselaw dept

Late last spring, a federal court in New York made it clear Trump’s blocking of Twitter users violated those users’ First Amendment rights. As the court reasoned then, Twitter may be a private company, but the use of it by government official to engage with the public makes it a limited public forum — limited to Trump’s account and Twitter users’ interaction with it. Twitter remains free to moderate as it pleases. The ruling did not say Twitter itself was a public forum, just government officials’ use of the platform via official accounts.

When Trump’s account blocked people he didn’t like, he violated the First Amendment.

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” … and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” … The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

Nearly a year later, another lawsuit involving government officials and their social media accounts has reached the appellate level. And the Fourth Circuit Court of Appeals has come to the same conclusion. The stakes may be smaller — shrinking from the President and his millions of followers to a Virginia county board member — but the outcome is the same. From the decision [PDF]:

The Chair’s Facebook Page also is “compatib[le] with expressive activity.” Cornelius, 473 U.S. at 802. “Congress [has] recognized the internet and interactive computer services as offering ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. § 230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page “constituted pure speech”). And the Supreme Court recently analogized social media sites, like the Chair’s Facebook Page, to “traditional” public forums, characterizing the internet as “the most important place[] (in a spacial sense) for the exchange of views.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An “exchange of views” is precisely what Randall sought—and what in fact transpired—when she expressly invited “ANY Loudoun citizen” to visit the page and comment “on ANY issues,” and received numerous such posts and comments.

But Chairperson Phyllis Randall didn’t like Brian Davison’s comments on any issues, especially those related to ethics and school board spending. So she banned Davison from posting comments to her page — the same page she declared to be her “county Facebook page.” The court’s description of the page leaves little doubt it was being used as an official tool of communication by Phyllis Randall.

Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page “as a tool of governance,” id. at 713: through the Chair’s Facebook Page, Randall provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.

If a government official is going to use a social media account in this fashion, they can’t ban others from accessing it or posting comments without violating the First Amendment. Randall’s arguments about how “public” this “public forum” was — what with a private company providing the communications platform — don’t budge the needle at all. As the court points out, any interpretation still leads to First Amendment violations.

Upon concluding that interactive component of the Chair’s Facebook Page amounts to a public forum, we would normally need to determine whether it constitutes a traditional public forum or designated or limited public forum. In the present case, however, we need not decide that question because Randall’s ban of Davison amounted to “viewpoint discrimination,” which is “prohibited in all forums.”

This really shouldn’t be up for discussion but it will be as long as politicians think they can enjoy the advantages of third-party social media platforms with none of the downside. Talking to the public is always going to result in comments and questions government officials don’t want to hear. But that’s part of job. Being a public servant means dealing with the public, which can often be far from pleasant. Banning people on platforms is an easy way to silence critics, but it’s almost always going to be a violation of their rights.

Filed Under: 1st amendment, 4th circuit, free speech, politicians, public forum, social media
Companies: facebook