The National Labor Relations Board says any “aggrieved” person (not just an employee) can file a complaint of unfair labor practices against an employer. So does that include any old Internet troll? We may soon find out now that a Twitter rando has filed a NLRB complaint against Ben Domenech, editor of the online opinion journal The Federalist, over his joke tweet saying that if any employees unionize he would “send you to the salt mine.” [New Civil Liberties Alliance]
- Second Circuit decision restricting public officials from blocking foes on Twitter is likely to discourage local electeds from sharing on social media, among its other problems [Gabriel Malor thread, John Samples/Cato, earlier]
- State of Washington defines lawyers’ pro bono work as “campaign expenditure,” even when it goes toward ballot access effort for a measure that never reached the ballot to be campaigned over. Review and clarification by high court sorely needed [Ilya Shapiro, Trevor Burrus and Patrick Moran on Cato amicus brief in Evergreen Freedom Foundation v. State of Washington]
- Freedom of press not just for those who own one: “Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment” [Eugene Volokh, defamation law]
- “Publishing Court Records Containing Home Address Not Actionable Invasion of Privacy” [Volokh on a pattern that sometimes gives rise to claims of “doxxing”]
- FOSTA, the law hailed as creating a pioneering exception to Section 230 for speech promoting “sex trafficking,” isn’t just your ordinary incursion on Internet freedom. It comes with a body count [Mike Masnick, Techdirt; related, Violet Blue, Engadget]
- If they’re farming, don’t you be filming: John Stossel on ag-gag laws [Reason video and story, earlier]
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] New Congressional Research Service report on free speech and the regulation of social media content [Valerie C. Brannon, Congressional Research Service]
- “A social media campaign from the French government has been blocked by Twitter – because of the government’s own anti-fake-news law” [BBC via Elizabeth Nolan Brown]
- European authorities misidentify many pages on Internet Archive as “terrorist,” demand takedown [Mike Masnick, Techdirt]
- Armslist case is one in which Section 230 protected Second Amendment rights (that’s not a misprint for First) [John Samples, Cato; Eugene Volokh]
- Sen. Josh Hawley (R-MO)’s bill to require the largest social media firms to obtain certification of their political balance from the FTC, on pain of making them liable for all content posted by users, met with hail of dead cats from knowledgeable observers [Elliot Harmon/EFF, John Samples/Cato and more, Cathy Gellis, Joshua Wright thread, Eric Goldman, Raffi Malkonian on retroactivity and more, Elizabeth Nolan Brown/Reason] Related: Daphne Keller (“Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages”);
- “We sympathize with Plaintiffs — they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'” [Sixth Circuit, Crosby v. Twitter, affirming dismissal of lawsuits seeking to hold Twitter, Facebook, and Google liable under Anti-Terrorism Act for abetting self-radicalization of perpetrator of Orlando Pulse attack]
“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.
Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):
said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.
Under the new law, “a single significant act can land you in trouble,” he told reporters.
Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:
Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”
Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.
“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.
I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea. [cross-posted from Free State Notes; see also earlier]
Related: an Ohio student has been arrested and faces expulsion over a Twitter account on which he made vicious comments about female classmates; whatever view the law takes of the prospective expulsion of 18-year-old Mehros Nassersharifi by Perrysburg High School, his arrest, on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech went further than simply “rating” of classmates)]
Rep. Devin Nunes (R-Calif.) is suing Twitter and several critics, including the anonymous proprietors of accounts styling themselves “Devin Nunes’s Mom” and “Devin Nunes’s Cow,” claiming defamation and other torts. Section 230, which protects Internet companies from liability for users’ postings, is likely to prove an obstacle to his claims against Twitter. [ABA Journal; Eugene Volokh, first (Section 230), second (“fighting words” doctrine inapplicable), and third (injunction that suspends entire Twitter account likely overbroad remedy) posts; Mike Godwin and Elizabeth Nolan Brown, Reason] More: Liz Mair (a defendant in suit), USA Today.
It’s worth emphasizing, in addition, that although the suit claims bias on Twitter’s part against political conservatives, were Nunes somehow to establish as a matter of law that the social media provider is obliged to intervene to remove harsh, unfair personal criticism of public figures, it would engage in much *more* removal of conservatives’ tweets and accounts than it does now.
Meanwhile, Don Blankenship, who lost a Republican Senate primary in West Virginia last year, is suing many media outlets and other organizations claiming defamation. Massey Energy, of which Blankenship had been CEO, “owned a mine where a 2010 explosion killed 29 miners. Blankenship spent a year in federal prison for violating safety regulations, which is a misdemeanor.” The suit says press outlets and critics erroneously described the candidate as a felon. [Anna Moore, WCHS]
A “string of civil lawsuits intended to pin liability on online platforms for allegedly providing material support to terrorists” has mostly fared poorly in court, with Section 230 providing a bulwark against liability in most cases, “but some of these cases are on appeal and plaintiffs have filed several new ones. If these suits are successful, they could be detrimental for the Internet: platforms would have little choice to become much more restrictive in what sorts of speech they allow.” In particular, “if online platforms no longer have Section 230 immunity for hosting content even remotely related to terrorism, those forums and services will take aggressive action to screen their users, review and censor content, and potentially prohibit anonymous speech.” [Aaron Mackey, Electronic Frontier Foundation; examples here (Facebook), here (Twitter), here, here (San Bernardino: Facebook, Google, Twitter), here (attacks in Paris and Brussels, Twitter), here (Orlando), here (Facebook), here (Twitter), etc. ]
“Big internet platforms for speech are privately owned, but those who would pressure private firms to restrict speech are often the same people who would substantially restrict the rights of people to speak. John Samples and Emily Ekins discuss how Americans think about free speech today and ways to defend it in the modern age.” [Cato Daily Podcast with Caleb Brown]
More: John Samples on Facebook moderation policies; Matthew Feeney, “Keep Government Away From Twitter.” And if Congress abrogates the liability protections of Section 230, as some conservatives urge, one predictable consequence will be that more conservatives will wind up getting purged from social media [Elizabeth Nolan Brown]
- “Netherlands Prosecuting Man for Insulting Turkish President Erdogan” [Eugene Volokh]
- Among articles in the new Cato Supreme Court Review: Robert McNamara and Paul Sherman on NIFLA v. Becerra (California law prescribing speech by “crisis pregnancy” centers, earlier);
Rodney Smolla on Mansky (restrictions on political apparel at polling places, earlier);
- Fifth Circuit: No, Louisiana cannot make it a crime to “intimidate” police officers by threatening to complain about them [Volokh]
- “Can the President Block You on Twitter?” Federalist Society Policy Brief video with Josh Blackman, earlier here and here;
- Roy Moore sues comedian Sacha Baron Cohen for defamation, Ken from Popehat not expecting suit to prevail [thread]
- “Billionaire Steve Wynn, Who Once Tried To Kill Nevada’s Anti-SLAPP Law, Loses Defamation Case Under That Law” [Mike Masnick, TechDirt]
- Senators have big plans for government regulation of social media but U.S. Constitution keeps getting in way [John Samples, Cato; David McCabe, Axios, earlier] “Censorship breeds censorship envy, and that’s true of private suppression by massively influential platforms such as Facebook as well as of governmental censorship.” [John Samples, Eugene Volokh]
- Is it lawful for a state lawmaker to block someone on Twitter who’s publicly discussed ways of murdering him? [Dorit Reiss, PrawfsBlawg, earlier]
- European Parliament delays adopting online copyright directive that critics said would result in Internet content filtering and royalties for linking [Thomas McMullan/Alphr, BBC earlier]
- Is the ACLU OK with French catcalling law? [Robby Soave] With using government to keep the wrong sorts of people from owning radio outlets? [Scott Shackford, related]
- Federalist Society telecast on Ninth Circuit decision on Idaho “ag-gag” law with UCLA lawprof Eugene Volokh and Andrew Varcoe of Boyden Gray & Associates;
- “Arrests for offensive Facebook and Twitter posts soar in London” [Sadie Levy Gale, Independent] Downhill in Denmark: “How the Right Abandoned Free Speech in Europe” [Cato podcast and Reason interview with Jacob Mchangama]