Free Speech

[TexRex]

 

[Imari]

That's interesting. I mean, it's not a free speech problem any more than any other piece of information about yourself or your history that you're required to give for a visa. Giving the government your Twitter handle is not surrendering a right to free speech. People are too quick to label anything that feels like an invasion of privacy as a free speech issue.

It is interesting in the sense of the surveillance culture that we find ourselves in though. And how through that a lot of the anonymity that characterised the early internet era is disappearing, for better or worse.

 

[TexRex]

That's interesting. I mean, it's not a free speech problem any more than any other piece of information about yourself or your history that you're required to give for a visa. Giving the government your Twitter handle is not surrendering a right to free speech. People are too quick to label anything that feels like an invasion of privacy as a free speech issue.

You're right, of course, not least because any punishment for noncompliance or any content that may be discovered is guaranteed to not exceed denial of admittance or, in the event that one has been granted a visa and exists in the country as a non-citizen resident, deportation.

What's more--and this is something I'm glad to have learned recently, because it's interesting--there's actually Court precedent in Kleindienst v. Mandel (1972), wherein Belgian economist and professor Ernest Mandel was denied a visa to speak at universities, to which he was invited, because of his advocacy for communism. The Court upheld the denial by Attorney General Richard Kleindienst (appointed Deputy AG by Nicon and later brought up to AG, an office he'd hold during Watergate but resign in 1973 rather than grant the release of burglars at the heart of the scandal...I did say it's interesting) and upheld the privilege of Congress to impose conditions on admittance.

But the Knight First Amendment Institute at Columbia University argues, compellingly (or rather the argument is inherently compelling), that the policy has a chilling effect on speech.

It also concerns me that any information gathered from the individuals' social media interactions may be shared with those individuals' home country, which may not offer speech protections, particularly if the United States enjoys a special enough diplomatic relationship, and while I'd hope that information would not be shared if it might put the individual in harm's way once they return, I'm far too cynical to have any confidence in that.

It's just strange to me (or would be if Biden wasn't more authoritarian right* than most on the left who support him, and on the right who oppose him, care to admit) that the administration would stick to this with the taint on it from former administration and it having been so associated with the appropriately rescinded Muslim ban. Weirder still, the Biden administration has denied a request by DHS to employ similar measures, citing the agency's failure to demonstrate practical utility, but appears to be sticking to this despite similar failure.

*Admittedly, and thankfully, not as authoritarian right--indeed not as trending toward despotic--as Trump.

...

Phoenix Authorities Used 'ACAB' Slogan To Designate Protesters as a Gang

The acronym ACAB—"all cops are bastards"—has become a popular slogan at protests against police brutality and corruption. Cops whose feelings are hurt by this have little legal recourse since declaring all cops bastards is protected speech whether they like it or not. But Phoenix-area law enforcement apparently thought that they had found a way around this: by declaring ACAB to be the name of a criminal gang, and those chanting it to be declaring their gang membership.

This was a fiction—and authorities now admit as much. Prosecuting slogan-chanting protesters on gang charges was "deeply flawed" and there was "no likelihood of conviction on the gang charges," wrote Maricopa County prosecutor Ryan Green in a court motion.

Yet promulgating this pretense allowed Phoenix-area authorities to arrest and charge more than a dozen anti–police brutality protesters under the guise of stopping gang activity.

After being arrested last fall, these defendants were forced to spend months fighting allegations that they had been "assisting a criminal street gang." The charges were eventually dismissed in February. But "prosecutors have not permanently backed off from future prosecution," notes the Arizona Republic. Of the 15 adults charged, "only one of them had their case dismissed with prejudice, which means prosecutors can't refile charges against them."

Besides, those charged were listed in the state's gang database and may still be on it. Officials still won't say whether they have now been removed.

The case "highlights larger issues with the vague nature of Arizona's gang statutes and the broad power provided to law enforcement agencies to document and track alleged gang members without public scrutiny," suggests ABC15 reporter Dave Biscobing.

Amy Kaper, who is 29, was one of the people that local authorities deemed members of the fictional ACAB gang after she attended a small October 17, 2020, protest against police abuse. Reportedly all of those in attendance—15 adults and three minors—were arrested.

"It's scary," Kaper said in a February interview with ABC15. "It feels like totalitarianism. It feels like we're not allowed to speak out about our rights. And unless you're on the side [police are] on, they're going to arrest you and try to ruin your life."

ABC15 has been digging deep into the alleged "gang" prosecutions. "The evidence shows police and prosecutors presented grand jurors with dubious claims, one-sided evidence, exaggerations, and lies," the station concluded.

The bulk of the protest consisted of the group simply marching down a street and chanting. Some carried umbrellas, to shield themselves from potential pepper balls or identification by counterprotesters trailing them with cameras. In addition, "some protesters tipped orange cones, toppled temporary street signs, and dragged construction barriers to slow and annoy the police" who were trailing them, reports ABC15. "At one point, one person in the group released a smoke maker—the same type often used in gender reveal parties, court records show."

After being arrested, the protesters were entered into Arizona's statewide "GangNet" database and charged with rioting, obstructing a public thoroughfare, unlawful assembly, conspiracy to commit assault, and assisting a criminal street gang. While all of the charges seem like overreach, the gang charge is especially galling.



Circuitous and vague definitions of gang activity in Arizona helped make it possible.

Arizona defines assisting a criminal street gang—a felony—as "committing any felony offense, whether completed or preparatory for the benefit of, at the direction of or in association with any criminal street gang." A criminal street gang is defined as "an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and that has at least one individual who is a criminal street gang member."

To be deemed a criminal street gang member, someone must meet two of seven criteria: self-declaration, "witness testimony or official statement," "written or electronic correspondence," paraphernalia or photographs, tattoos, clothing or colors, or "any other indicia of street gang membership."


At a grand jury trial for one of the arrested protesters, Sergeant Doug McBride of the Phoenix Police Department said the protesters met the criteria because chanting "all cops are bastards" counted as self-identification with the alleged ACAB gang, and the color black, worn by many protesters, was an ACAB gang color. (He also said umbrellas were part of the ACAB gang uniform.) Besides, "under the gang statute, just hanging around and participating can also be another indication of former or informal association," he told the grand jury.

McBride said Phoenix police had "first came into contact with this group through graffiti, signage, ACAB written on the back of skateboards and different paraphernalia," then went on to liken the alleged ACAB gang to Hells Angels, the Bloods, and the Crips:

Q: And are you finding that ACAB is following the exact same type of philosophy of let's say the Bloods and the Crips?

A: Yes.

Q: And what about even maybe the same philosophy as the Hells Angels?

A: Very similar, yes.

Q: And why would that be similar?

A: I think because the tattoos, the intimidation factor, how they are directing their violent behavior very similar to the Hells Angel organization where they actually organize their violent behavior, and then they carry that out in a very organized fashion. It's not random with the Hells Angels.

Q: And are you finding that's exactly what this ACAB group is doing is they are organizing for the intent to create violence?

A: Yes.

McBride further contended that unlike the Bloods and the Crips, "this is the first time…that we have an organized group of individuals and all of their planning and all of their violence is directed directly toward the police department."

All of this is ridiculous, as anyone who has encountered the ubiquitous (and at least century-old) ACAB slogan online and at protests can attest.


It's also frighteningly authoritarian. Charging protesters as gang members has "serious implications not only for the individual lives of those impacted, but for everyone who values free speech and the promise of democracy," said Phoenix City Councilmember Carlos Garcia in a statement last November. "It's an abuse of power. It is political persecution. It is undemocratic."

Maricopa County said the information that ACAB was a gang was based on faulty reports from a former police informant—Riley Behrens—with a history of lying. Behrens also provided information to the FBI.

This isn't the only time last summer and fall that Phoenix authorities arrested protesters, nor the only protest case in which they are accused of lying. "Phoenix officers embellished the facts in another protest arrest last year by falsely claiming a demonstrator intentionally stabbed a sergeant with a sharpened umbrella tip," notes ABC15. Cellphone video obtained by the station shows this was not the case.

 

[TexRex]

 

[HenrySwanson]

I guess this belongs here. She's the woman JK Rowling caught flak for for supporting.

A woman who lost her job after saying that people cannot change their biological sex has won an appeal against an employment tribunal.

Maya Forstater, 47, did not have her contract renewed after posting tweets on gender recognition.

She lost her original case at a tribunal in 2019, but a High Court judge ruled her "gender-critical" beliefs fell under the Equalities Act.

The appeal said the tribunal had erred in law and another should take place.

 

[Danoff]

I guess this belongs here.

As far as I know, the UK doesn't have freedom of speech. I guess that's why you think it belongs here? Because they ought to? I think it's a slam dunk that the act being used in this case would violate the 1st amendment in the states.

 

[HenrySwanson]

As far as I know, the UK doesn't have freedom of speech. I guess that's why you think it belongs here? Because they ought to? I think it's a slam dunk that the act being used in this case would violate the 1st amendment in the states.

Just putting it out there for anyone interested in our handling of controversial views.

How would it have played out in the States do you think?

 

[Danoff]

How would it have played out in the States do you think?

If we had such a law, it would be challenged and overturned on the basis of violating the 1st amendment, probably by the supreme court. Companies here are generally allowed to fire based on insensitive tweets. Gina Carano springs to mind. Judging by that example, right wing folks would claim this is cancel culture and say something section 230 something something, corporations are government, ipso facto... no free speech, but free speech. And then when that legal argument didn't hold up they'd boycott to show people that cancel culture is only good when they do it.

 

[TexRex]

Big win.



Justice Thomas dissented, which isn't terribly surprising as he's lost the ****ing plot as of late.

 

[TexRex]

"'69' is a SEX NUMBER and it's OFFENSIVE!"

 

[UKMikey]

I'm guessing that should read "farcically unconstitutional", not "facially unconstitutional", but I don't blame Ms Gilliam and her legal team for being too angry at this "license plate cancel culture" to double check the autocorrected version.

 

[TexRex]

I'm guessing that should read "farcically unconstitutional", not "facially unconstitutional", but I don't blame Ms Gilliam and her legal team for being too angry at this "license plate cancel culture" to double check the autocorrected version.

I think its use in this context is as a facial challenge to the statute, arguing that the statute is unconstitutional as written, or "on its face."

Though the statute is farcical.

 

[UKMikey]

 

[TexRex]

Reading through Mike Dunford's account of the NetChoice v. Moody hearing as it was carried out, I sort of figured this would be the outcome. It's the appropriate outcome, of course, but the case the state of Florida made was...

🤡

It'll be interesting to see if this gets challenged. It was performative--Republicans' way of showing their idiot base they're standing up to "big tech" (as meaningless as this term has become)--so I suspect they're going to officially take the L while performatively continuing to play the aggrieved.

Edit: Gloat tour.

 

[TexRex]

I like to think Judge Hinkle was livid as he made these [quoted] remarks.



🔥

 

[Liquid]

I don't quite know where to put this but it seems most appropriate here.

Someone on Twitter framed something for me which I found to be like lightning in a bottle; there is no such thing as cancel culture, only consequence culture.

 

[Daz555]

Probably not worried about it because it is unenforceable claptrap. The legislation still needs to go though - it is laughable.

 

[TexRex]

Former Trump advisor Jason Miller--guy whose facial hair draws attention to his tiny mouth and weak chin rather than concealing it--is launching a social media platform, GETTR, as a supposed safe space for conservatives.

This is an odd provision in the ToS:

Of course, actual freedom of speech holds that, as speakers themselves, they are free to not host any speech they choose not to. It just seems to run contrary to "the spirit of free speech," as so often invoked by those who think the right applies to speakers on a by-speaker basis. Whatever happened to "the marketplace of ideas"?

I have to wonder how @Chrunch Houston feels about this provision.

Oh I am not whining, they can either be a platform, or a publisher. They can not be both. Publishers are held responsible for what they allow to be published. Platforms are not.

 

[TexRex]

Here we go:



I'm not going to shed a tear if the dumpster fire that Kelo v. New London is gets extinguished.

I'm a little concerned about New York Times v. Sullivan because I think actual malice is a perfectly fine threshold for defamation in general, to say nothing regarding public figures, and if that threshold is eliminated because Berisha v. Lawson supersedes it, I fear the decision may embolden anti-SLAPP objectors. That said, this one has Thomas' name all over it...and maybe Alito's...but I actually have some faith in Kavanaugh re: First Amendment and I think Gorsuch may be a safe bet as wl. I simply don't know enough about Coney Barrett, but how she sides wouldn't really matter if Kavanaugh and Gorsuch join the liberal Justices upholding Sullivan.

Seems I may have been overly confident in Gorsuch. (Specifically regarding Sullivan, as two messages have been embedded below.)

 

[Danoff]

Seems I may have been overly confident in Gorsuch. (Specifically regarding Sullivan, as two messages have been embedded below.)

I see that NY v Sullivan is a landmark 1st amendment case from the 60s, and I can see how it protects the press. But I can also see that it is causing problems. I wonder what your opinions are on this.

Edit:

Absent a ruling like NY v Sullivan, an opponent of the free press like Donald Trump could sue news providers ad nauseam to prevent unfavorable stories from coming out. On the otherhand, at the moment the press can get away with outright lies, and mislead an entire population into conspiracy, and destroy careers and personal property, with apparently no recourse.

The market-thinker in me says that the market will prevent lying press from getting away with that. But if they only do it once in a while... or their customers are poor at critical thinking...

 

[Brett]

Former Trump advisor Jason Miller--guy whose facial hair draws attention to his tiny mouth and weak chin rather than concealing it--is launching a social media platform, GETTR, as a supposed safe space for conservatives.

This is an odd provision in the ToS:

View attachment 1064397

Of course, actual freedom of speech holds that, as speakers themselves, they are free to not host any speech they choose not to. It just seems to run contrary to "the spirit of free speech," as so often invoked by those who think the right applies to speakers on a by-speaker basis. Whatever happened to "the marketplace of ideas"?

I have to wonder how @Chrunch Houston feels about this provision.

They seem to be implying that a reasonable level of moderation might be needed. It is almost as if behaving maturely, taking responsibility, and self-moderating is a good thing.

 

[TexRex]

I see that NY v Sullivan is a landmark 1st amendment case from the 60s, and I can see how it protects the press. But I can also see that it is causing problems. I wonder what your opinions are on
this.

Edit:

Absent a ruling like NY v Sullivan, an opponent of the free press like Donald Trump could sue news providers ad nauseam to prevent unfavorable stories from coming out. On the otherhand, at the moment the press can get away with outright lies, and mislead an entire population into conspiracy, and destroy careers and personal property, with apparently no recourse.

The market-thinker in me says that the market will prevent lying press from getting away with that. But if they only do it once in a while... or their customers are poor at critical thinking...

I'm amenable to further defining of what standards must be satisfied. I'm not comfortable with dissolving the precedent as certainly Thomas has been suggesting.

I think political speech is most likely to be impacted by dissolution of this precedent and I think political speech needs the most protection. I'm somewhat less concerned by staggeringly large entities (take NYT as an example, perhaps appropriately given it was the original plaintiff) subject to repercussions through libel suits because they can easily rise to legal challenges (not that they should necessarily be forced to rise to all legal challenges, such as those you point to), but staggeringly large entities aren't the only ones likely to be hit if the precedent is dissolved.

I think the precedent is imperfect. I seem to recall reading of abuse by way of a Cosby accuser seeking damages for alleged libel being treated as a public figure and being forced to provide evidence of actual malice.

I'd likely have fewer misgivings in the presence of anti-SLAPP legislation at the federal level, and I'm interested how you feel about this prospect specifically, in addition to the rest; I'm open to discussion.

They seem to be implying that a reasonable level of moderation might be needed. It is almost as if behaving maturely, taking responsibility, and self-moderating is a good thing.

I'm certain content moderation is necessary. It's also good business. Extremists are likely to be displeased, but it makes platforms more friendly to a larger swath of the public if you don't have vocal, hateful ****s spewing absolute garbage absent any kind of deterrence.

The point is that platform moderation receives First Amendment protection, no matter how successful or how biased the platform may be. The people at GETTR seem to understand this and the fact that they are beneficiaries.

 

[UKMikey]

I like Presidents who don't constantly violate the US Constitution.

 

[HenrySwanson]

I like Presidents who don't constantly violate the US Constitution.

 

[UKMikey]

He is literally arguing the ToS. Somewhere a lawyer is rubbing their hands with avaricious glee.

 

[Danoff]

I'm amenable to further defining of what standards must be satisfied. I'm not comfortable with dissolving the precedent as certainly Thomas has been suggesting.

I think political speech is most likely to be impacted by dissolution of this precedent and I think political speech needs the most protection. I'm somewhat less concerned by staggeringly large entities (take NYT as an example, perhaps appropriately given it was the original plaintiff) subject to repercussions through libel suits because they can easily rise to legal challenges (not that they should necessarily be forced to rise to all legal challenges, such as those you point to), but staggeringly large entities aren't the only ones likely to be hit if the precedent is dissolved.

I think the precedent is imperfect. I seem to recall reading of abuse by way of a Cosby accuser seeking damages for alleged libel being treated as a public figure and being forced to provide evidence of actual malice.

I'd likely have fewer misgivings in the presence of anti-SLAPP legislation at the federal level, and I'm interested how you feel about this prospect specifically, in addition to the rest; I'm open to discussion.

I've got no problem with anti-SLAPP legislation. Anti-SLAPP looks to me like essentially summary judgment, and I think that's one good measure against frivolous lawsuits like SLAPP suits. Lawsuits are definitely a battle ground, and place where smaller entities can easily be abused by larger legal teams. Streamlining those cases and limiting the scope of legal fees makes sense all the way around. It seems like a perfectly fine place for courts to be skeptical.

I don't know if courts do this, but I think it would be also cool for a judge to waive the summary judgment round, as in cases where it's not likely to prevail it just drags out the lawsuit.

He is literally arguing the ToS. Somewhere a lawyer is rubbing their hands with avaricious glee.

Is it Bruce Castor? I bet it's Bruce Castor.

 

[McLaren]

I like Presidents who don't constantly violate the US Constitution.

Donating money to this guy only for him to lose it in frivolous law suits.

 

[TexRex]

Donating money to this guy only for him to lose it in frivolous law suits.

It's not frivolous. Relief isn't likely as a result, but it's still performative. The mother****er gets to keep playing the victim and pretend he's doing something about it, and stupid people are going to keep paying him to do it. Trumpism, man.

Edit:

 

[TexRex]

AAAAAAAAHHHHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAH!!!!!



The Dersh has a new book to sell.

 

[UKMikey]

The Dersh has a new book to sell.

Sounds like it'll be hard convincing the judge that the three social media companies he's suing constitute any kind of a monopoly, but like you said... this is performative litigation.