Monthly Archives: December 2020

First, digital conversations onmatters of public concern, legally the centerpiece of First Amendment jurisprudence, were consistently blocked by partisan social-media operators throughout the 2020 election cycle. That alone is arresting; it has changed public access to information and calls for action.

Social-media companies moved from offering a public forum (with concurrent legal duties, including openness) to a content editor (typically imposing higher liability, such as for defamation), then into the unseemly, otherworldly role of kingmaker. By appearances, they know exactly what they are doing no apologies.

Second, critical information official, highly damning material, and verifiably accurate information concerning Joe Bidens son, apparently under investigation for months was blocked by these social-media giants, potentially affecting the election. The nub is that this information not only reflected poorly on the Democrat presidential candidate now president-elect but [I believe] implicated him.

Only after the election did we learn that data blocked could be objectively disqualifying. If members of Joe Bidens family, close for years, are under investigation for trading access for money, who is the him guilty of offering access? It takes to two to tango, as they say and Joe Biden is one of the two.

All this becomes even more insidious, objectionable, and arguably unconstitutional, when explicit and implied financial assistance, political advocacy, and campaign-tipping support is aligned with the Democratic Party.

In effect, political actors soon running the federal government have been assisted in shutting out the truth, in order to acquire power and this power, in turn, serves the personal, financial, and political agenda of those who control the social-media giants.

The time has come to separate mass power over information and the Democratic Party. More, the time has come to open these social-media giants to antitrust actions, public and private, and end the now-absurd notion that they should be immune from civil lawsuits, because they must be nurtured.

They have been effectively nurtured into monster-hood, a societal overlord position that allows dominance, controls critical information, and shuts off information flow essential to a free, open, and properly informed republic.

What power do these social media and big-tech players have? Beyond the ability to distort public dialogue on matters of public concern including blocking a December AMAC podcast discussing election lawsuits these giants have become sources of mass dependence.

For example, on Dec. 14, social-media users around the globe personally and professionally suffered the impact of a mass-access outage, shutting off access not only to dialogue, but also to mass databases. That downtime impacted everything from business communications, website accessibility, data access, and distance learning shutting schools.

The outage also illustrated how much dependence has arisen on these information-controlling outlets. Paired with political manipulation, the outage raises serious questions about the role, responsibility, and regulation of these huge, largely uncontrolled social media and high-tech companies.

In a nutshell, the time has come to open these oligopolistic companies to civil liability beginning with a repeal of section 230 of the Communications Decency Act. Then, we must aggressively regulate, deconstruct, break up, reduce the influence of, de-politicize, and hold accountable these digital behemoths.

The influence of big tech on America on our social harmony, mental health, basic human interactions, decision-making, political stability, institutional and political accountability, commerce, and contentment in short, their manipulation of the public mind is working at cross-purposes with democracy.

It has become a threat to the free flow of information vital for sustaining a free republic, not only teaming with powerful political actors (including socialist ideologues and promotors of leftist violence), but also undermining the currency of any democracy, the guarantee of citizen free speech.

So, looking back on history, the most heinous deprivations of individual liberty including impairment of the God-given freedoms of worship, assembly, travel, protest, self-defense, confronting accusers, fair trial, no false imprisonment, harm to life or limb, fear of government all begin with loss of free speech.

That is why the outrage of the moment is a talisman of our future. If Americans will see and speak truth, enact laws that protect political, personal, and professional free speech rather than empowering oppressors of free speech we can rise above this. If we do not act, we will wish we had. The First Amendment is under siege, and most Americans know it. We do not need more political violence. We need free speech, and protection of it. The time if there ever was one is now, to say so.

Robert Charles is national spokesman for the Association of Mature American Citizens (AMAC). The 2.3-million-member AMAC says it is a senior advocacy organization. Charles is a former assistant secretary of state for President George W. Bush, former naval intelligence officer, and litigator. He served in the Reagan and Bush 41 White Houses, as congressional counsel for five years, and wrote Narcotics and Terrorism (2003) and Eagles and Evergreens (2018), the latter on WW II vets in a Maine town.

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The First Amendment is under siege and most Americans know it - The Central New York Business Journal

30 December 2020

Foley Hoag LLP

To print this article, all you need is to be registered or login on Mondaq.com.

The First Circuit's recent opinion in Project Veritas Action Fund v. Rollins, upheld a challengeto the Massachusetts anti-wiretap law, Mass. Gen. Laws ch. 272, 99, carving out an exceptionfor certain activity protected by the FirstAmendment. The opinion begins:

Massachusetts, like other states concerned about the threat toprivacy that commercially available electronic eavesdroppingdevices pose, makes it a crime to record another person'swords secretly and without consent. But, unlike other concernedstates, Massachusetts does not recognize any exceptions based onwhether that person has an expectation of privacy in what isrecorded. See Mass. Gen. Laws ch. 272, 99 (Section99). As a result, Massachusetts makes it as much a crime fora civic-minded observer to use a smartphone to record from a safedistance what is said during a police officer's mistreatmentof a civilian in a city park as it is for a revengeseeker to hide atape recorder under the table at a private home to capture aconversation with an ex-spouse. The categorical and sweeping natureof Section 99 gives rise to the important questions under the FirstAmendment to the United States Constitution that the challengesthat underlie the consolidated appeals before us present.

Section 99 violates the First Amendment by prohibiting thesecret, nonconsensual audio recording of police officersdischarging their official duties in public spaces. We also affirmthe District Court's order dismissing Project Veritas'sFirst Amendment overbreadth challenge for failing to state a claimon which relief may be granted.

The 72-page opinion has a lengthy description of the origins ofSection 99 and is worth reading for that alone. On the merits, theFirst Circuit equated unauthorized recording to more traditionalforms of newsgathering:

a citizen's audio recording of on-duty policeofficers' treatment of civilians in public spaces whilecarrying out their official duties, even when conducted without anofficer's knowledge, can constitute newsgathering every bitas much as a credentialed reporter's after-the-fact effortsto ascertain what had transpired.

However, the court declined to invalidate all of Section 99under First Amendment overbreadth concepts.

Originally Published by Foley Hoag, December 2020

To view Foley Hoag's Security, Privacy and The LawBlog please click here

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

POPULAR ARTICLES ON: Privacy from United States

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First Circuit Creates Exception To Massachusetts Wiretap Statute Based On First Amendment Rights, Allows Citizens And Press To Record Police Activity...

from the double-tapping-Glik dept

More than a decade ago, Simon Glik was arrested by Boston police officers for the "crime" of recording them in public. This was made possible by a law passed in the mid-60s, which turned Massachusetts into a "two-party" recording state. Unless the person doing the recording has the consent of the person being recorded, it's a violation of the state's wiretap law.

Glik successfully challenged this law, securing an Appeals Court ruling that stated the law was unconstitutional as applied to the recording of police officers in public places. This didn't immediately end the bogus arrests. Five years later, the government was taken to court again for enforcing this law in a way the Appeals Court said it couldn't. Also along for the ride was James O'Keefe's "Project Veritas," which argued the law was unconstitutional when applied to any public official in nearly any setting.

The federal court said the Glik decision applied to the recording of police officers, whether surreptitious or not. It pointed out the Boston Police Department had issued new guidance based on the Glik decision, but falsely portrayed acceptable recordings as limited to those cops knew were happening. Not so, said the court. Even surreptitious recordings of cops in public spaces are protected by the First Amendment. It didn't come to the same conclusion about Project Veritas' arguments, finding the law was not overbroad when it applied some minimal restrictions to recording public officials.

The Commonwealth still wants to abuse its bad law. It appealed this decision, sending it to the same court that had found its application of the law to the recording of cops unconstitutional nearly a decade ago. The First Circuit Court of Appeals says [PDF] the government's arguments are no better nine years later. Surreptitious recordings of police officers performing their public duties does not interfere with their work. Citizens are under no obligation to tell police officers they're being recorded. The government's interpretation of the law would just provide cover for misconduct.

Because the recording here will not be done in plain sight or with the actual knowledge of the officers whose words will be recorded, they will not even be aware that such recording is occurring. For that reason, they will not be on specific notice of a need to take precautions to ensure that words that they do not wish to have recorded are not. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties.

Citizens deserve transparency and accountability. And if law enforcement agencies aren't willing to provide that on their own, citizens have the Constitutional right to gather information about police activities.

Accordingly, we conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public. [...]

Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing.

The Commonwealth also raised the argument that people interacting with police might be recorded without their consent. Again, the court points out there's minimal expectation of privacy in conversations with cops in public areas. While some citizens may not want to be recorded, talking to officers in the earshot of other members of the public is hardly a private conversation. And the precedent cited by the DA is completely off base.

In pressing this point, the District Attorney contends that special attention must be paid to the fact that "when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive." She supports this argument by invoking the Supreme Court's captive-audience cases.

[...]

But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how -- across the board -- the proposed secret recording results in "substantial privacy interests . . . being invaded in an essentially intolerable manner."

Project Veritas' case, however, fails to move the court. Veritas wanted the law invalidated in its entirety, claiming it deterred it from recording public officials and those interacting with public officials without limitation. But the examples it provided of speech is was being "deterred" from engaging in was far more limited than the relief it sought.

Project Veritas alleged in connection with this challenge that it seeks to record "government officials who are discharging their duties at or around the State House in Boston and other public spaces" in hopes of learning those officials' unvarnished thoughts about "immigration policy and deportation"; "to capture whether antifa public events and protests are peaceful, whether police or other public officials interactions with antifa members are non-violent," and to otherwise report on those events; and that its "journalists would have attended" "a large public event" related to "the ongoing PVA 'antifa' investigation" but for Section 99.

Thus, Project Veritas gives no indication that it intends to investigate any and every type of civil servant, no matter their function or place in the governmental hierarchy. But, if we take Project Veritas at its word and construe the term "government officials" as broadly as "officials and civil servants," that category covers everyone from an elected official to a public school teacher to a city park maintenance worker.

The court says it's not willing to completely upend the law when narrower reading might both serve the First Amendment and the state's governmental interests. This plaintiff asks the court to consider all recordings equal. The court says that's not realistic.

The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of government official who would be recorded. It is hardly clear that a restriction on the recording of a mayor's speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park's grounds.

Veritas' case will go back to the court for some additional exploration -- but only if, given a third chance to write a complaint, the activist group actually finds something worthy of discussion by the court. But the ruling here is clear: recording cops in Massachusetts isn't a crime, no matter how much Massachusetts wishes it would be.

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Filed Under: 1st amendment, 1st circuit, civil rights, free speech, massachusetts, recording police, simon glik

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First Circuit Appeals Court Reaffirms Its 2011 Decision: The First Amendment Protects The Recording Of Cops - Techdirt

New Years Eve is going to be different this year.

Bars, restaurants and entertainment venues are under heavy restrictions from Gov. Roy Cooper.

Plus, Cooper has imposed a 10 p.m. curfew on everyone in the state, which might seem to mean that everyone should be at home, or at least wherever they plan to spend the night, long before midnight.

But the curfew imposed by Cooper does have a few, or actually many, exceptions, and if you are thinking about staying out past Coopers curfew, it might be heartening to know that at least in Greensboro none of Coopers 183 executive orders are being enforced.

The curfew order itself has enough loopholes to drive even the largest SUV through without even pulling in the mirrors. Some good news, particularly for those trying to celebrate New Years Eve in a more traditional manner, is that one of the exceptions to the curfew is to travel to and from an establishment that sells mixed drinks to go. Also, although bars and restaurants have to stop selling alcoholic beverages to customers at 9 p.m., to go mixed drinks can be sold up until the normal 2 a.m. deadline.

So, if at 11 a.m. you should decide that a martini from your favorite bar is what you need to usher in the New Year, the regulations wont allow you to go to that bar, order and drink said martini, but you can go and order a martini to go.

You, of course, can also go out after 10 p.m. not only to buy mixed drinks but to buy groceries, take-out food, medical care, fuel, health care supplies and social services, not to mention to go to or from work. Also, using any kind of shared transportation such as Uber and taxicabs or traveling to the airport, train station or bus station is exempt from the curfew restrictions, as is traveling to care for someone or a pet.

Mass gatherings are prohibited for more than 10 people indoors or 50 people outdoors, which seems like it would eliminate most New Years Eve parties, but Executive Order 18,1 also under Exemptions, states, Worship, religious, and spiritual gatherings, funeral ceremonies, wedding ceremonies and other activities constituting the exercise of First Amendment rights are exempt from all the requirements of this Executive Order.

The First Amendment, along with freedom of religion, freedom of speech and freedom of the press, also protects the right of the people peaceably to assemble. The courts have interpreted this to mean any group that gathers or assembles including for social occasions is protected by the First Amendment.

So Executive Order 181 both states that people cant gather in groups of more than 10 indoors or 50 outdoors and that the right of people to gather as protected in the First Amendment is exempt from that regulation.

See the article here:
New Year's Eve In The Year Of The Coronavirus - The Rhino Times of Greensboro - The Rhino TImes

There was never any question whether the global coronavirus pandemic would be named the most important religion-news story of 2020.

The question was which faith-driven COVID-19 story out of a dozen or so would top the Religion News Association's Top 10 list.

According to journalists who cover religion, this was the year's biggest story: "COVID-19 pandemic claims lives of many religious leaders and laity, upends death rituals, ravages congregational finances, spurs charitable responses, forces religious observances to cancel or go online and stirs legal fights over worship shutdowns."

But there was a problem on my ballot. The RNA list included another coronavirus item focusing on religious liberty. In some cities and states, officials created pandemic regulations that claimed many institutions from grocery stores to casinos provided "essential services." Meanwhile, other institutions like churches and synagogues were deemed "nonessential."

The U.S. Supreme Court eventually ruled that religious institutions shouldn't face tougher rules than secular groups and activities. It was wrong, for example, to ban masked priests from hearing confessions outdoors, 10 feet away from masked penitents while consumers were lined up at liquor stores.

These conflicts continued. In a symbolic pre-Christmas press conference, Virginia Gov. Ralph Northam explained why he thought religious groups should be willing to move their activities online and stay there for now.

"This year, we need to think about what is truly the most important thing," Northam explained in the press conference. "Is it the worship or the building? For me, God is wherever you are. You don't have to sit in the church pew for God to hear your prayers."

Bishop Robert Barron of the Catholic Archdiocese of Los Angeles was not amused. The problem with this "secularized, Protestant-ized" view of worship, he said, is that it doesn't work for believers with ancient traditions that don't work online, such as offering communicants consecrated bread and wine.

"A lot of us, for a long time, have been worried that the secular state has been trying to push religion out of the public square," said Barron in a social-media video. "Sometimes you'll hear this language: 'Yeah, freedom of religion means freedom of worship, that you can kind of do your own thing behind the walls of your churches, just don't come out in public.'

"Well, that's bad enough. ... Now we're invading the private space of our own worship. Here's a secular governor instructing us on the nature of worship?"

For me, this First Amendment showdown was the most important religion-news story of 2020. Here's the rest of the RNA Top 10.

2. Protests and riots follow the police killings of George Floyd, Breonna Taylor and others, with many religious leaders in the forefront. Many religious institutions rethink their complicated histories with race.

3. Joe Biden is the second Catholic to be elected president, with big assists from an energized religious left, secular voters and believers in African American churches.

4. Amy Coney Barrett, whose Catholic and charismatic faith history faced intense scrutiny, joins a conservative Supreme Court majority replacing Ruth Bader Ginsburg, whose liberal Jewish heritage helped shape her career.

5. Police, using tear gas, clear out protestors so that President Donald Trump can pose with a Bible at the historic St. John's Episcopal Church near the White House. Many religious leaders express outrage.

6. Once again, white evangelicals overwhelmingly vote for Trump, despite dissent by some religious conservatives. Surprising numbers of Latino evangelicals and Catholics also back the president.

7. Many governments and religious institutions oppose human-rights abuses by China against Muslim Uighurs and others in the Xinjiang region, including the use of internment camps.

8. The Vatican releases a long-delayed report on ex-cardinal Theodore McCarrick, showing that bishops, cardinals and popes failed to act on sexual-misconduct reports.

9. Pandemic limits on worship gatherings spur opposition from some Orthodox Jewish groups, Catholic bishops and evangelical leaders. The Supreme Court backs challenges by Catholic and Jewish groups to rules in New York City and elsewhere.

10. Liberty University president Jerry Falwell Jr. resigns amid a firestorm over risque social media posts and an alleged sex scandal. Claims of sexual misconduct are made against late evangelical apologist Ravi Zacharias and Hillsong pastor Carl Lentz.

As religion newsmakers of the year, RNA poll voters selected George Floyd and Breonna Taylor, whose killings by police officers ignited protests against racial injustice and made them iconic images of the Black Lives Matter movement. President-elect Biden was the runner-up.

Terry Mattingly is the editor of GetReligion.org and senior fellow at The King's College in New York City.

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On Religion: COVID was year's top religion story. But which story? - Tahlequah Daily Press

L. Lin Wood had a message from God to deliver.

Dont believe the media. Theyre liars, the celebrity defamation lawyer declared in October at a gathering of evangelicals in Atlanta.

Then he vowed, Were going to take them down, bringing the crowd to its feet.

Mr. Woods speech to a packed ballroom at the Faith and Freedom Coalitions annual conference was a preview of the role he would soon play as one of the most relentless promoters of President Trumps conspiracy theories and baseless claims about election fraud.

It is a turn that has surprised many former associates of the theatrical lawyer, whom Dan Rather once described as the attorney for the damned for his roster of high-profile clients like Richard A. Jewell, who was wrongly suspected of setting off a bomb at the Atlanta Olympics, and the parents of JonBenet Ramsey, the 6-year-old whose murder became a tabloid frenzy.

But Mr. Wood has reinvented himself into an extreme Trump advocate, one who has found fame among Mr. Trumps supporters not because he is good at notching victories for the president, but because he will amplify Mr. Trumps wildest accusations and dive head first into the culture wars.

Mr. Woods lawsuits seeking to undo the election in Georgia and to ask the Supreme Court to overturn votes in other key states have been soundly rejected by judges and riddled with errors, including a misspelling of his own name.

Still, many Republicans have grown worried that Mr. Wood is harming the partys chances of holding the Senate. His repeated suggestion that people should sit out the Georgia runoff elections to punish Republicans who werent sufficiently supportive of Mr. Trump led Newt Gingrich to condemn Mr. Wood as totally destructive. The editor of National Review described him as an exceptionally talented demagogue.

Ralph Reed, the chairman of the Faith and Freedom Coalition and a veteran of Georgia politics, said that control of the Senate was too important to squander.

I like Lin. I think hes a very brilliant guy and a first-class litigator, Mr. Reed said. But the stakes of the Senate races are too high to use them as a platform to express outrage about the results of the presidential election.

Former colleagues described Mr. Wood as someone who shares many traits with Mr. Trump. He claims to loathe the mainstream media but has used it effectively to build his brand. He intimidates adversaries with lawsuits. And he thrives on shocking those around him.

Mr. Woods recent clients have included highly polarizing figures like Marjorie Taylor Greene, who supports the QAnon hoax and was recently elected to Congress; Mark and Patricia McCloskey, the St. Louis couple who brandished weapons at demonstrators outside their house; and Kyle Rittenhouse, the teenager charged with fatally shooting two protesters in Kenosha, Wis. He is also representing Nicholas Sandmann, a student whose encounter with a Native American protester made national news, in his libel suit against The New York Times.

Before the former national security adviser Michael T. Flynn raised the possibility with Mr. Trump of declaring martial law, the notion of enlisting the military to oversee a do-over of the election was an idea that Mr. Wood had floated in interviews with right-wing media.

Legal experts said Mr. Wood, who is well aware of what the law says about defamation and libel, appears to be betting that the targets of his most baseless claims wont sue him because he is protected by the First Amendment and they dont want the hassle. He has insinuated, for instance, that Chief Justice John G. Roberts Jr. may have associated with the now-deceased convicted sex offender Jeffrey Epstein.

And at a rally this month in Atlanta, where Mr. Wood appeared alongside Mr. Flynn and another pro-Trump lawyer known for pushing conspiracy theories, Sidney Powell, he accused Gov. Brian Kemp of corruption and led the crowd in chants of Lock him up!

His antics have earned him an audience with Mr. Trump. Mr. Wood said in an email that they had spoken about fraud and illegality in the election on more than one occasion, though he is not an official member of the presidents legal team.

Lawyers who have worked with Mr. Wood, 68, described him as animated and aggressive inside and outside the courtroom someone known for showing up uninvited to the news conferences of his opponents and belittling witnesses in depositions.

But few who know him professionally said they expected him to descend into the miasmic swamp of right-wing conspiracy theories.

The Lin Wood I see today bears basically no resemblance to the Lin Wood I knew back then, said Timothy Terrell, a law professor at Emory.

Timothy is not a friend of mine, Mr. Wood said. But I am pleased that Timothy has noticed a change in my life. God changed my life when I realized that He is real.

Mr. Woods biggest break came in 1996 when he represented Mr. Jewell, a security guard wrongly suspected of planting a pipe bomb in Atlanta during the Summer Olympics that killed one person and injured more than 100 others.

For the next 20 years, he built a reputation as a pit bull plaintiffs lawyer who sued the news media for a pantheon of aggrieved clients. He represented John and Patsy Ramsey in their struggle to clear their names in their daughters killing and the former congressman Gary Condit after the death of his intern Chandra Levy.

Though the defamation cases were headline-grabbing, his more lucrative legal work has been in areas like medical fraud and malpractice.

James Rawls, an Atlanta-based lawyer who helped Mr. Wood with some of the Ramsey family matters, said working with him was easy when we were all on the same team. But their relationship became untenable, Mr. Rawls said, because his firm, Powell Goldstein, had a large practice defending media companies and Mr. Wood was unwilling to stop attacking the media.

Mr. Wood was raised in Macon and experienced tragedy as a teenager, returning home one day to discover that his father an abusive alcoholic had beaten his mother to death. Watching the murder trial that followed inspired him to become a lawyer.

His professional life has been messy. His former law partners are suing him for unpaid compensation, alleging that he displayed bizarre, messianic behavior. They claim that he referred to himself as Almighty Lin and indicated that, according to a prophecy he saw on YouTube, he expected to be named chief justice of the United States.

I have assessed my mental health, he wrote in an email to his partners that is cited in the suit. I am a little crazy, but Im also mainly sane and possess a healthy mind.

Mr. Wood contends that the suit is littered with false statements and completely irrelevant factual allegations.

After his speech at the Faith and Freedom event, Mr. Wood returned to his seat on the dais and his date, the Fox News host Jeanine Pirro, jumped up to hug him.

Mr. Reed, the M.C., raised his voice to be heard over the applause.

Thank you for bringing the thunder, Lin, Mr. Reed said.

Link:
How Lin Wood Became a Pro-Trump Conspiracy Theorist - The New York Times

That enthusiasm didnt last, but mainstream platforms learned their lesson, accepting that they should intervene aggressively in more and more cases when users post content that might cause social harm. During the wildfires in the American West in September, Facebook and Twitter took down false claims about their cause, even though the platforms had not done the same when large parts of Australia were engulfed in flames at the start of the year. Twitter, Facebook, and YouTube cracked down on QAnon, a sprawling, incoherent, and constantly evolving conspiracy theory, even though its borders are hard to delineate. These actions had a domino effect, as podcast platforms, on-demand fitness companies, and other websites banned QAnon postings. Content moderation comes to every content platform eventually, and platforms are starting to realize this faster than ever.

As if to make clear how far things had come since 2016, Facebook and Twitter both took unusually swift action to limit the spread of a New York Post article about Hunter Biden mere weeks before the election. By stepping in to limit the storys spread before it had even been evaluated by any third-party fact-checker, these gatekeepers trumped the editorial judgment of a major media outlet with their own.

Gone is the naive optimism of social-media platforms early days, whenin keeping with an overly simplified and arguably self-serving understanding of the First Amendment traditionexecutives routinely insisted that more speech was always the answer to troublesome speech. Our tech overlords have been doing some soul-searching. As Reddit CEO Steve Huffman said, when doing a PR tour about an overhaul of his platforms policies in June, I have to admit that Ive struggled with balancing my values as an American, and around free speech and free expression, with my values and the companys values around common human decency.

Derek Thompson: The real trouble with Silicon valley

Nothing symbolizes this shift as neatly as Facebooks decision in October (and Twitters shortly after) to start banning Holocaust denial. Almost exactly a year earlier, Zuckerberg had proudly tied himself to the First Amendment in a widely publicized stand for free expression at Georgetown University. The strong protection of even literal Nazism is the most famous emblem of Americas free-speech exceptionalism. But one year and one pandemic later, Zuckerbergs thinking, and, with it, the policy of one of the biggest speech platforms in the world, had evolved.

The evolution continues. Facebook announced earlier this month that it will join platforms such as YouTube and TikTok in removing, not merely labeling or down-ranking, false claims about COVID-19 vaccines. This might seem an obvious move; the virus has killed more than 315,000 people in the U.S. alone, and widespread misinformation about vaccines could be one of the most harmful forms of online speech ever. But until now, Facebook, wary of any political blowback, had previously refused to remove anti-vaccination content. However, the pandemic also showed that complete neutrality is impossible. Even though its not clear that removing content outright is the best way to correct misperceptions, Facebook and other platforms plainly want to signal that, at least in the current crisis, they dont want to be seen as feeding people information that might kill them.

See the rest here:
The Year That Changed the Internet - The Atlantic

from the make-section-230-boring-again dept

The other day Senator Schatz tweeted, "Ask every Senator what Section 230 is. Dont ask them if they want to repeal it. Ask them to describe it."

It's a very fair point. Most of the political demands to repeal Section 230 betray a profound ignorance of what Section 230 does, why, or how. That disconnect between policy understanding and policy demands means that those demands to repeal the law will only create more problems while not actually solving any of the problems currently being complained about.

Unfortunately, however, Senator Schatz's next tweet revealed his own misunderstanding. [Update: per this tweet, it wasn't his misunderstanding his next tweet revealed but rather the misunderstanding of other Senators who have proposed other sorts of "reforms" he was taking issue with. Apologies to Senator Schatz for misstating.] "I have a bipartisan bill that proposes changes to 230, but repeal is absurd. The platforms are irresponsible, but we should not have a government panel handing out immunity like it's a hunting license. We must rein in big tech via 230 reform and antitrust law, not lazy stunts."

There's a lot to unpack in that tweet, including the bit about antitrust law, but commenting on that suggestion is for another post. The issue here is that no, Section 230 is nothing like the government "handing out immunity like a hunting license," and misstatements like that matter because they egg on "reform" efforts that will ruin rather than "reform" the statute, and in the process ruin plenty more that the Constitution and our better policy judgment requires us to protect.

The point of this post is to thus try to dispel all such misunderstandings that tend to regard Section 230's statutory protection as some sort of tangible prize the government hands out selectively, when in reality it is nothing of the sort. On the contrary, it reads like a rule of civil procedure that, like any rule of civil procedure, is applicable to any potential defendant that meets its broadly-articulated criteria.

For non-lawyers "rules of civil procedure" may sound arcane and technical, but the basic concept is simple. When people want to sue other people, these are the rules that govern how those lawsuits can proceed so that they can proceed fairly, for everyone. They speak to such things as who can sue whom, where someone can be sued, and, if a lawsuit is filed, whether and how it can go forward. They are the rules of the road for litigation, but they often serve as more than a general roadmap. In many cases they are the basis upon which courts may dispense with cases entirely. Lawsuits only sometimes end with rulings on the merits after both parties have fully presented their cases; just as often, if not more often, courts will evaluate whether the rules of civil procedure even allow a case to continue at all, and litigation frequently ends when courts decide that they don't.

Which is important because litigation is expensive, and the longer it goes on the more cost-prohibitive it becomes. And that's a huge problem, especially for defendants with good defenses, because even if those defenses should mean that they would eventually win the case, the crippling cost involved in staying in the litigation long enough for that defense to prevail might bankrupt them long before it ever could.

Such a result hardly seems fair, and we want our courts to be fair. They are supposed to be about administering justice, but there's nothing just about letting courts being used as tools to obliterate innocent defendants. One reason we have rules of civil procedure is to help lessen the danger that innocent defendants can be drained dry by unmeritorious litigation against them. And that is exactly what Section 230 is designed to do as well.

An important thing to remember is that most of what people complain about when they complain about Section 230 are things that the First Amendment allows to happen. The First Amendment is likely to insulate platforms from liability in their users' content, and it's also likely to insulate them from liability for their moderation decisions. Section 230 helps drive those points home explicitly for providers of "interactive computer services" (which, it should be noted, include far more than just "big tech" platforms; they also include much smaller and non-commercial ICS providers as well, and even individual people), but even if there were no Section 230 the First Amendment would still be there to do the job of protecting platforms in this way. At least in theory.

In practice, however, defendant platforms would first have to endure an onslaught of litigation and all its incumbent costs before the First Amendment could provide any useful benefit, which will likely be too little, too late for most if not all of them. The purpose of Section 230 is therefore to make sure those First Amendment rights can be real, and meaningful, and something that every sort of interactive computer service provider can be confident in exercising without having to fear being crushed by unconstitutional litigation if they do.

What people calling for any change to Section 230 need to realize is how these changes will do nothing but open the floodgates to this sort of crushing litigation against so much that the Constitution is otherwise supposed to protect. It is a flood that will inevitably chill platforms by effectively denying them the protection their First Amendment rights were supposed to afford, and in the process also chill all the expressive user activity they currently feel safe to enable. It is not an outcome that any policymaker should be so eager to tempt; rather, it is something to studiously avoid. And the first step to avoiding it is to understand how these proposed changes will do nothing but invite it.

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Filed Under: brian schatz, civil procedure, section 230, subsidy

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Section 230 Isn't A Subsidy; It's A Rule Of Civil Procedure - Techdirt

1. Focus on the Trade Press, Not the National PressThe national news is not good. It never is. Good news doesnt sell. It doesnt lure eyeballs. It doesnt generate clicks. Crises and catastrophes do that. So, thats what you are served up. Feed off of it and you risk spiraling down to depression. Instead, focus on the trade press.

Make the trade press the first websites you turn to at the start of the day. It will keep you focused on your business, your trade, and pointed in a positive direction. If you must pay attention to the national trade press, do it at the end of the day.

2. Work on CultureThe companies that proved the most resilient in 2020 were those with strong cultures. It is harder than ever to work on culture at the moment, but that doesnt lessen the importance. Focus on the little things. Keep your team upbeat on a daily basis. Not everyone will care for it, but some will feed off of it. Focus on teamwork, being nice, serving each other and the customer, doing the right thing, being positive, and taking initiative.

3. Market, Market, MarketGetting your name and brand out there is more important than ever. Jump on every opportunity to promote yourself. Do not become overly reliant on any one source of leads. The world is dynamic and changing fast. The search engines and review sites have no qualms about changing algorithms, business policies, or programs on a dime. Depend on them today and you might find lead flow shut off tomorrow.

Utilize digital marketing, but not at the expense of traditional methods. Many contractors are getting excellent results with direct mail. People are home to open the mail. Get creative about ways to entice them to open it.

There are some good mass media advertising opportunities today. Check out the cable TV and digital radio opportunities. Cable and digital radio are excellent because they can be more precisely targeted to match your service area.

4. Be Prepared to PivotParts of the HVAC industry did well through 2020. According to AHRI, unit shipments of central air conditioners and heat pumps were up 8.9% through October. This reflects strong performance on the residential end of the industry, where shipments were up double digits. By contrast, the commercial end of the industry was hit hard with shipments down double digits.

Read the trade press and join contractor groups to get an early gauge on new opportunities and threats.

At the start of COVID, commercial contractors who pivoted towards residential likely outperformed their peers who did not. However, when the economy fully opens up, stores and restaurants open, and people return their offices, there is likely to be a wave of commercial work. In this type of environment, contractors must be prepared to pivot. Read the trade press and join contractor groups to get an early gauge on new opportunities and threats.

5. Stay as Apolitical as PossibleNo matter what your politics, if you are not chilled to your core by todays cancel culture and doxing, you arent paying attention (and that might be a good thing for your attitude). Do not wear your politics on your sleeve. If you do, you place your entire business at risk. There are some vicious people in the world, operating without checks.

Note that this is not about right and wrong. It is not about the first amendment. It is not about what is American or un-American. It is about protecting your business income.

6. Do Not Buy the Panic PornWe live in an age where facts seem fluid. Everyone says to follow the science, but it seems selective. Big tech and big media filter what were allowed to see, hear, and say. It seems like the only science that really matters is the political science. This is why the recommendations are inconsistent. Science seems to follow the politics, not the reverse.

Take things seriously, Take reasonable precautions. But, do not panic.

How do you discern the truth? Who do you trust? Trust yourself. Think for yourself. Ask the right questions. There is no question that COVID-19 is deadly to some people, but who and how many? It is clear that many think masks, social distancing, and lockdowns are the solutions, but what about people who dont follow the recommendations?

Make your own comparisons between places where policies are strict and places where they are not. Compare populations that disregard the orders like the homeless camps with the general populations. Draw your own conclusions. If you think it through, you will likely understand the situation better as it really exists. Take things seriously, Take reasonable precautions. But, do not panic.

7. Understand That You are the X FactorWhen all is said and done. You, personally make the greatest difference in your business success. Make a decision today that 2021 will be the best in your companys history and refuse to accept any other answer. If the industry pulls back, step forward with more effort. If it gets harder to find a customer, increase your advertising and marketing. Contractors who panic will lose. Those who are bold will prosper.

Every contractor should join the Service Roundtable. Stay on the cutting edge of the industry. Interact with industry leaders and cutting-edge contractors. Download HVAC centric content designed to help your business succeed. Save through the industrys largest buying group. Learn more at http://www.ServiceRoundtable.com or call 877.262.3341

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7 Recommendations for the New Year - Contracting Business

Rex Smith| The New York Times

It is a season of wonder and hope. For some, the wonder propelling it all is the manger, the event that gave rise to our celebration of Christmas. For all of us, surely, the specific hope we embrace most fervently right now is that this dark winter of pandemic will yield to recovery before too long.

But there are other ways to think of wonder and hope, and they can be found on a quite practical level.

President-elect Joe Biden bluntly reminded us Tuesday that, even as we near the end of the deadliest year in American history, Our darkest days in the battle against COVID are ahead of us, not behind us. Painful as it is to weigh that, I take hope from a leader who tells us the truth. It is a welcome change.

Americans are a mostly resilient lot. A new poll from Axios reveals that one-third of us expect our physical and mental health, as well as our finances, to improve in 2021. Thats hope worth savoring and encouraging.

Lets be amateur linguists for a moment, though, and use that word hope not as a noun meaning what we have faith will occur, but as a verb implying what we want. Heres what I hope: I hope people will do the right thing to help us escape this pandemic. And to minimize our losses as much as possible in the months before widespread distribution of the vaccine protects us, public health experts offer simple requests: Wear a mask and stay away from other people.

That will protect our loved ones, our co-workers, strangers and ourselves. It is ungenerous to behave otherwise.

So while were changing the use of words English is fun! lets get back to wonder. As a verb meaning something one ponders, heres what I wonder: You people who refuse to wear a mask, what are you thinking?

Youve got to wonder, for example, about the maskless mass in a conga line at a party in Queens earlier this month of the Whitestone Republican Club. A video of the party has been shared 3.5 million times, drawing criticism and ridicule. COVID conga lines are not smart, Gov. Andrew M. Cuomo said.

To that, the club responded with a statement that cited members First Amendment rights. Adults have the absolute right to make their own decisions, the group said, and clearly many chose to interact like normal humans and not paranoid zombies in hazmat suits.

Cute hyperbole, but thats not the choice. Our constitution protects our rights, but theres more at stake here than the freedom of a bunch of over-served bit-part politicos to wiggle to the BeeGees in a bar.

Americans won the right to equality and freedom of speech, religion and the press, in part because our founders were influenced by the political philosophy of the Enlightenment. In that period, from roughly the mid-1600s to the beginning of the 19th century, ideas such as liberty, tolerance and the value of constitutional government developed, undermining the authority of royalty and church hierarchy. The Enlightenment brought an emphasis on the scientific method as an alternative to religious dogma.

Of course, there was pushback. Many people said that a world ruled by reason would be soulless and immoral. Science only seemed to rule the world, they said, because people were looking at it through a scientific lens, rather than a spiritual one.

There are those who argue that we are still locked in those arguments. In the recently-released book Patriots of Two Nations, Spencer Critchley links the Counter-Enlightenment philosophy to conflicts throughout American history, culminating in the presidency of Donald Trump.

To his most committed followers, it makes no difference when Trump makes no sense, Critchley writes. In fact, not making sense can be the point, when the enemy is seen as both relentlessly sense-making and spiritually empty.

Take, for example, Trumps dismissal of scientists conclusion that climate change played a role in this falls historic California wildfires. The president said the world would soon start to cool naturally; when he was reminded that science showed otherwise, he replied, I dont think science knows, actually.

To many supporters, the obvious lies that Trump spouts continuously matter less than the fact that hes speaking to a sort of higher truth: what they identify as a spirit of America. And when the president holds White House gatherings that turn into COVID-19 super-spreader events, to many supporters it exemplifies the overarching value of freedom in our national charter and serves as an example to be followed.

In a civil society, though, our security depends upon protecting one another, and equating selfishness to freedom mocks our heritage. Civilization is first of all a moral thing, the French philosopher Henri Amiel wrote in the mid-19th century. Without truth, respect for duty, love of neighbor, virtue, everything is destroyed. The morality of society is alone the basis of civilization.

Morality requires protecting each other as we can. Right now that means, simply, masking and distancing. In this season of hope, I wonder: Isnt that the least we must do?

Rex Smith writes for The New York Times.

Read the original post:
Smith: Small steps to bring hope and wonder - The Register-Guard