Tag Archive for: unconstitutional

Trump Gets Mad That Twitter Won’t Take Down A Parody Of Mitch McConnell; Demands Unconstitutional Laws

I’m still perplexed by Trumpian folks insisting that the President is a supporter of free speech (or the Constitution). It’s quite clear that he’s been a huge supporter of censorship over the years. The latest example is, perhaps, the most bizarre (while also being totally par for the course with regards to this President). For unclear reasons, the President has retweeted someone with fewer than 200 followers, who posted a picture of Senate Majority Leader Mitch McConnell in traditional Russian soldier garb… while complaining that Twitter won’t take that image down, while it has “taken down” manipulated media from his supporters.

The tweet says:

Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true? Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!

He then tags two Republican Senators who have spent years pushing bullshit bills and making misleading arguments about how evil certain internet companies are.

There are so many things wrong with this one tweet, I feel it’s best to number them:

  1. First of all, content moderation at scale is impossible to do well, so it never is reasonable to use a single anecdote to prove bias or to claim that Twitter is somehow doing something wrong. And that’s even if this image should have been taken down, which it should not have.
  2. Next, this is just parody. And it’s obvious parody (except, I guess to our humorless President). There’s no reason to take down parody.
  3. Twitter isn’t taking down “Republican/Conservative pictures and statements that are true.” They are taking down or putting warnings on manipulated media that has been posted with the intent to mislead. No one is going to look at the picture of McConnell and think it’s proof that he really is doing Putin’s bidding.
  4. And, what “Republican/Conservative pictures and statements that are true” has Twitter actually taken down?
  5. Repealing Section 230 would make this situation worse for Trump and his fans, not better. If Twitter was likely to face lawsuits for tweets that infringe upon rights, then it has much stronger incentive to take down the kinds of defamatory, bogus tweets that Trump and his fans like to put up regularly.
  6. And it would still have no reason to take down a parody image like the one Trump is tweeting.
  7. Even if Twitter was choosing to take down content from Trump fans and allowing content from his critics to stay up that’s perfectly legal (and, again, there remains no evidence to support this claim). There is nothing against the law about being politically biased. If there were, then Fox News, Breitbart, OANN and others would be in a deep pile of shit. Yet, somehow all the “social media is biased!” folks never seem to address any of that.
  8. Bonus round: Because of Trump’s continued unwillingness to understand the Streisand Effect, he just gave this image that very few people saw, a massive boost in attention. For what?

But, of course, Josh Hawley rushed in to use this travesty to push his blatantly unconstitutional bill.

Hawley doesn’t say which of his many, many anti-Section 230 bills he’s talking about, but in saying that it’s the bill that would “permit individuals unfairly censored by #BigTech to sue!” he likely means this particularly unconstitutional pile of garbage. Even if the bill somehow passed (and it won’t) both Houses of Congress and somehow wasn’t judged unconstitutional (it would be), it still wouldn’t do what Hawley and Trump seem to want it to do.

Without Section 230 protections Twitter would be much quicker to take down this kind of nonsense to avoid liability. It wouldn’t magically decide to keep up Trumpian propaganda that might get it sued. We already know this is true because we see it in the copyright space. In copyright, there is much more liability for leaving infringing content up, because of the DMCA 512 safe harbors not being nearly as broad as Section 230’s immunity provision. And, because of that, we’ve seen Twitter take down infringing content from Trump and his fans much more frequently than they take down (or label) other content. Because the lack of a liability shield means that Twitter would have more pressure to take this content down.

It’s difficult to believe that someone like Josh Hawley doesn’t know this. But Josh Hawley — the very definition of the elite — has made his reputation by lying to stupid people, while pretending to be against the elite. And so he knows that this bill can’t pass and that it’s unconstitutional, and that it would do the opposite of what he claims. But he seems to be betting on stupid people buying into this latest culture war.

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Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

Another case of nonexistent “customer confusion” is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] “Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans” law.

The law, written at the behest of meat and dairy lobbyists, claims customers are “confused” by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase “cauliflower rice.” Why? Because Arkansas is home to the nation’s largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don’t contain meat.

That law is now on death’s door, having been savaged by a federal judge calling bullshit on the state’s willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there’s no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $ 1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky’s use of words like “sausage,” “kielbasa,” “burger,” and “ham” confuse consumers despite Tofurky also using words like “white quinoa,” “all vegan,” “plant-based,” and a big “V” to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.

[…]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state’s attempt to carve out exceptions to the First Amendment on behalf of favored industries.

Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I’m writing it that way because that’s the only way this is going to turn out. The state doesn’t have a compelling argument up its sleeve that’s going to reverse what’s seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they’re going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don’t care who’s donating to whose re-election campaign.

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Former Intelligence Officials Sue The Government Over Its Unconstitutional Pre-Publication Review Process

A handful of former intelligence officials are suing the US government for engaging in prior restraint. It’s a novel take on a First Amendment issue — one that involves a vetting process for books, articles, and op-eds written by these officials containing details of their work in the CIA, Defense Department, and the Office of the Director of National Intelligence.

While the government obviously has some right to ensure classified or sensitive info isn’t leaked in post-career memoirs, the plaintiffs argue the vetting process has no guidelines and no firm timetable, which has resulted in planned publications being held up for years with zero explanation. Charlie Savage has more details at the New York Times.

The plaintiffs include Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former C.I.A. employee; Anuradha Bhagwati, a former Marine; and Mark Fallon, a former counterterrorism agent at the Naval Criminal Investigative Service.

Mr. Fallon, who retired in 2010, said that he had trouble getting the manuscript for his book, “Unjustifiable Means: The Inside Story of How the C.I.A., Pentagon, and U.S. Government Conspired to Torture,” cleared for publication.

His plan, he said, had been to publish it at the start of the Trump administration. But the government farmed out his book to numerous agencies, and the review process delayed publication more than eight months, to the fall of 2017, disrupting promotional plans.

In Fallon’s case, the government demanded redactions of material that had already made its way out to the public domain via congressional hearings and news articles. It wanted 113 pages removed completely, even though the subject matter was already subject of open discussions in Washington, DC.

The redaction process is a mess, according to the lawsuit. Books get shuffled from agency to agency, resulting in a patchwork of internally-inconsistent redaction demands that guts entire sections of the authors’ manuscripts. The end result of this process is an obvious negative effect on the free speech of these former officials. The lawsuit [PDF] claims authors have engaged in self-censorship, lost book contracts, and otherwise avoided participating in speech they feel should be protected.

Mr. Fallon’s experiences with prepublication review continue to negatively impact him and deny him the opportunity to contribute to the public debate over breaking news. He would like to publish op-eds in newspapers about current affairs, but his experiences with the review process have discouraged him from trying to do so because of potential delays and unjustified objections by the agency. Mr. Fallon has declined offers to author op-eds and write articles on topics of public concern in response to breaking news because such events require an immediate response in light of the ever-changing news cycle. In addition, Mr. Fallon is unsure how his prepublication review obligations apply in academia—for example, whether he must submit for review edits he makes to the work of other people, or whether an entire piece written by someone else becomes subject to review if he adds one or two sentences. This uncertainty hinders Mr. Fallon’s work and his ability to engage with his colleagues.

That’s just Fallon’s experience. Others echo the same complaints. Most point out the redactions demanded by government agencies include public domain information and seem to be made with the point of protecting agencies from embarrassment, rather than protecting the nation from unintentional leaks of sensitive info.

The plaintiffs are asking the court to find the process unconstitutional, given its incursion on their free speech rights.

Defendants’ prepublication review regimes violate the First Amendment because they invest executive officers with sweeping discretion to suppress speech and fail to include procedural safeguards designed to avoid the dangers of a censorship system.

Defendants’ prepublication review regimes are void for vagueness under the First and Fifth Amendments because they fail to provide former government employees with fair notice of what they must submit for prepublication review and of what they can and cannot publish, and because they invite arbitrary and discriminatory enforcement.

It will be a tough fight. The government likes to engage in opacity and avoid embarrassment. Both of these are key factors in its vague, lengthy pre-publication review process. It won’t want to give those up and it will have ton of national security arguments to make on its own behalf — few of which tend to get challenged by federal courts.

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As Expected Senate Overwhelmingly Passes Unconstitutional SESTA Bill, Putting Lives In Danger

This was not unexpected, but earlier today the Senate easily passed SESTA/FOSTA (the same version the House passed a few weeks ago) by a 97 to 2 vote — with only Senators Ron Wyden and Rand Paul voting against it. We’ve explained in great detail why the bill is bad. We’ve explained in great detail why the bill won’t stop sex trafficking and will actually put sex workers’ lives in more danger, while also stomping on free speech and the open internet at the same time (which some see as a feature rather than a bug). The Senate declined to put any fixes in place.

Senator Wyden, who had originally offered up an amendment that would have fixed at least one big problem with the bill (clarifying that doing any moderation doesn’t subject you to liability for other types of content) pulled the amendment right before the vote, noting that there had been a significant, if dishonest, lobbying effort to kill those amendments, meaning it had no chance. He did note that because of the many problems of the bill, he fully expects that these issues will be revisited shortly.

As for the many problems of the bill… well, they are legion, starting with the fact that multiple parts of the bill appear to be unconstitutional. That’s most obvious in the “ex post facto” clause that applies the new criminal laws to activities in the past, which is just blatantly unconstitutional. There are some other serious questions about other parts of the bill, including concerns about it violating the First Amendment as well. It seems likely that the law will be challenged in court soon enough.

In the meantime, though, the damage here is real. The clearest delineation of the outright harm this bill will cause can be seen in a Twitter thread from a lawyer who represents victims of sex trafficking, who tweeted last night just how much damage this will do. It’s a long Twitter thread, but well worth reading. Among other things, she notes that sites like Backpage were actually really useful for finding victims of sex trafficking and in helping them get out of dangerous situations. She talks about how her own clients would disappear, and the only way she could get back in touch with them to help them was often through these platforms. And all that will be gone, meaning that more people will be in danger and it will be that much harder for advocates and law enforcement to help them. She similarly notes that many of the groups supporting SESTA “haven’t gotten their hands dirty in the field” and don’t really understand what’s happening.

That’s true on the internet side as well. Mike Godwin highlights the history before CDA 230 was law and the kinds of problems that come about when you make platforms liable for the speech of their users.

In Cubby, a federal judge suggested (in a closely reasoned opinion) that the proper First Amendment model was the bookstore – bookstores, under American law, are a constitutionally protected space for hosting other people’s expression. But that case was misinterpreted by a later decision (Stratton Oakmont, Inc. v. Prodigy Services Co., 1995), so lawyers and policy advocates pushed to include platform protections in the Telecommunications Act of 1996 that amounted to a statutory equivalent of the Cubby precedent. Those protections, in Section 230, allowed platform providers to engage in certain kinds of editorial intervention and selection without becoming transformed by their actions into “publishers” of users’ content (and thus legally liable for what users say).

In short, we at EFF wanted platform providers to be free to create humane digital spaces without necessarily acquiring legal liability for everything their users said and did, and with no legal compulsion to invade users’ privacy. We argued from the very beginning, about the need for service providers to be just, to support human rights even when they didn’t have to and to provide space and platforms for open creativity. The rules we worked to put into place later gave full bloom to the World Wide Web, to new communities on platforms like Facebook and Twitter and to collaborative collective enterprises like Wikipedia and open-source software.

Meanwhile the Senators who passed the bill will completely forget about all of this by next week, other than to pat themselves on the back and include 3 seconds in their next campaign ad about how they “took on big tech to stop sex trafficking.” And, of course, people in Hollywood are laughing at how they pulled a fast one on the internet, and are already strategizing their next attacks on both CDA 230 and DMCA 512 (expect it soon).

None of those celebrating realize how much damage they’ve actually caused. They think they’ve “won” when they really did astounding levels of damage to both victims of sex trafficking and free speech in the same effort.

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