The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication.
—United States v. N.Y. Times Co., 328 F. Supp. 324, 331 (S.D.N.Y. 1971)
The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication.
—United States v. N.Y. Times Co., 328 F. Supp. 324, 331 (S.D.N.Y. 1971)
I’ve let the Google story broken by Project Veritas percolated through the Interwebz for a day before commenting. I wanted to see how some of the usual suspects reacted. There’s only been one real surprise so far, and that was how long it took YouTube, a sister company to Google, to send the Project Veritas video down the memory hole. (BTW, if you haven’t seen the video, it’s available here. Go watch it, and come back. I’ll wait …)
Today’s TKPOTD deals with an effort back in 2015 to silence me. As part of that effort, my business and personal Twitter accounts were shut down. Twitter claimed that it was because of “targeted abuse” but could not cite a single example. I believe I was being punished for not following their approved narrative. However, I was one of the earliest victims of Twitter’s “safety” system, and my permanent suspension was only temporary. When the false criminal charge failed for lack of evidence, Twitter seemed to realize their potential liability. My business account was reinstated, but the lessons learned from that failure were used to refine their tactics.
Facebook, Google, YouTube, Pinterest, … the list goes on. They all seem to have the same sort of definition of fairness, one that wouldn’t survive the old Fairness Doctrine I worked under as a broadcaster in the ’60s and ’70s. These companies’ users aren’t customers. The users are the product being sold to advertisers, and as product, they are something to be moulded and controlled.
So why am I still on Twitter if I view it as an unfair platform and untrustworthy business partner? I can use it to promote blog posts at no real cost to me. Beyond that, it has no real appeal. I got on Gab when it was brand new, and I’ve made a small investment in the company because it really seems dedicated to free speech.
Except for Maps and Scholar, I’ll pretty much given up on Google. DuckDuckGo has been my default search engine for over a year. I’ll still link to YouTube content, put if I wanted to post a video, I’d use BitChute. I’ve deleted my Pinterest account. I no longer post to Facebook.
And I’m not the only person who has grown tired of online services who despise me.
Twenty years ago, as the Internet Bubble was bursting, Google survived because it was a robust company infrastructure with a viable business model. Coincidentally twenty years ago, Venezuela was one of the wealthiest countries in the Western Hemisphere with thriving petroleum industry. While I’m saddened, I’m not shocked by what Marxism has done to Venezuela. If I’m still around in 2039, I suspect that I’ll feel more schadenfreude than sadness for what a post-modern, neo-Marxist business model is likely to do for Google. Or Twitter. Or the rest of ’em. I certainly don’t expect to have use my shocked face.
Congresscritter David Nunes (R-CA) is suing Twitter and several Twitter account holders alleging negligence, defamation per se, insulting words, and common law conspiracy. He’s asking for $250,000,000 in actual damages and $350,000 in punitive damages. Here’s a copy of his complaint. (H/T, Fox News’ Scribd account)
I’ve read the whole complaint. It describes disgusting tweets of the sort that are far too common on Twitter. I think that it presents a case that Twitter does not fairly apply its Terms of Service, but I don’t understand how it alleges behavior by Twitter that gets around the protection it enjoys under federal law (47 U.S.C. § 230) as an interactive computer service. He seems to have a much better case against the Twitter users than against the service itself.
IANAL, but Canadian feminist Meghan Murphy’s suit in California alleging that Twitter’s unfair treatment of her amounted to a breach of contract seems to make more sense to me.
From my point of view as a Twitter user who was permanently banned based on false and malicious complaints and whose account was suddenly restored when the civil and criminal complaints against me failed, it seems that the only way to get Twitter to live up to its promise “to give everyone the power to create and share ideas and information, and to express their opinions and beliefs without barriers” is the realistic possibility of legal liability. The Murphy case appears to have a basis in law, Nunes’ suit not so much.
I occasionally honor requests to remove comments from Hogewash!. For example, a frequent commenter who wished to remain anonymous mistakenly used his actual identity when making a comment. I took that comment down at his request. However, I recently received a request to delete some comments which I don’t intend honor. In that instance, a third party was objecting to comments which appear to be true and which add to the discussions of the topics raised in the related posts, and the third party was demanding that the commenter take them down. As far as I’m concerned, they’ll stay up.
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On rare occasions, I’ve closed comments on a post, but the comment section is open on this one.
I’ve been informed that my podcasting partner Stacy McCain has received a seven day suspension of his Twitter account because he engaged in “dead naming,” i.e., referring to a person presenting as the opposite sex of his or her biological sex by that person’s birth name.
Explaining Twitter Safety’s aversion to inconvenient truth might be easier if one could refer to Twitter Safety by its birth name, but the outfit’s exact origin is unclear. Cheka? Gestapo? Stasi? Savak? Miniluv? …
John Sexton has a post over at Hot Air about how Twitter has restored Jesse Kelley’s account, claiming that the ban was temporary. Of course, the message they sent him when his account was shut down specifically said that the ban was permanent and that no appeal was possible.
I doubt that Twitter was lying when they banned Kelley. They probably intended the ban to be permanent, but they weren’t able to get away with it. Most of the time, Twitter can ban an account without any consequences. However, in Kelley’s case potential consequences not only existed but also may have been seen as too great to confront. A Senator and a Senator-elect took interest at a time when questions were being asked about the possibility that Twitter CEO Jack Dorsey had committed perjury before a congressional committee. Those facts could have provided reason enough for Twitter to want to make the controversy go away.
Such a scenario squares with my personal experience. I was permanently banned with no possibility of appeal from Twitter in 2015 as a result of false accusations of “targeted abuse.” When the related court cases were resolved in my favor and the possibility of civil liability arose, Twitter decided that my business account could be restored. They still won’t restore my personal account.
The Gentle Reader can review the facts and make up his own mind.
War is Peace.
Freedom is Slavery.
Ignorance is Strength.
Permanent is Temporary.
Big BrotherTwitter is watching You.
UPDATE—Baldilocks has some thoughts on holding Twitter’s feet to fire over at Da Tech Guy Blog.
Here’s what I saw during the Gilmore v. Jones, et al. hearing on motions to dismiss at the U.S. District Court in Charlottesville, Virginia.
First of all, I saw Judge Moon from up close. At one point in his presentation, Aaron Walker (representing Lee Stranahan, Jim Hoft, Scott Creighton, Michele Hickford, and Words-N-Ideas) was using a poster to clarify some of the points he was making. Because there wasn’t an easel in the courtroom, he asked me to hold it, and the judge asked me to bring right up to the bench. Judge Moon seemed to be familiar with the material in the written briefings from the Plaintiff and the three groups of defendants, and he engaged counsel from both sides with questions to clarify factual details. He did not ask many questions regarding the legal theories presented.
Andrew Grossman (representing Alex Jones. Lee Ann McAdoo, InfoWars, and Free Speech Systems) spoke first. He first attacked Gilmore’s claim that the court had jurisdiction over the defendants he represented. None are from Virginia. Because the only claims against them are based in state law, the requirements of the Virginia long arm statute must be met, and he noted that the Plaintiff has offered no evidence to support that assertion. Then he argued that, even if the court had jurisdiction over his clients, the things they were accused of saying or writing were expressions of opinion of the sort protected by the First Amendment and, thus, not actionable.
Aaron Walker went next. He made the same jurisdictional argument for his out-of-state clients. Then, he argued that the court lacked subject matter jurisdiction with respect to the case against Lee Stranahan. Stranahan and Gilmore are both residents of Virginia, and without a federal issue, a federal court doesn’t have jurisdictions over residents of the same state concerning a state law matter. The poster I held for the judge detailed the evidence for Stranahan’s residency in Virginia (extensive) versus Gilmore’s claim that Stranahan is resident of Texas (essentially non-existent). Initially, Gilmore had claimed that Stranahan had a Texas driver’s license, but his lawyers have backed off that claim when they were informed that Stranahan is legally blind. They now claim that Lee’s Texas voter registration was renewed in late 2017, but Stranahan has submitted two declarations relating to his Virginia residency, stating in one that he did not renew his registration and does not know how or even if it might have been renewed. Walker also argued that the remarks made by his clients concerning Gilmore were protected by the First Amendment and not actionable.
Brandon Bolling spoke for Allen West. He was brief and to the point. At the time the allegedly defamatory comments were published, the websites and social media accounts using West’s name were not under his control, and the Plaintiff has done nothing to show that West was in control of those sites. West had nothing to do with the remarks. If there is a case for defamation, it can’t be against someone who wasn’t involved. West should be dismissed from the case.
Two lawyers spoke on behalf of the Plaintiff. Andrew Mendrala of the Georgetown Law Civil Rights Clinic went first. He spent a good portion of his time on the issue of jurisdiction, and he made the statement that Stranahan had only submitted one declaration with respect his residency and that Stranahan had not dealt with the Plaintiff’s assertion that he was registered to vote in Texas. That was incorrect. During a recess, the error was pointed out to him, and he refused to correct the record.
Brianne Gorod of the Constitutional Accountability Center spoke for Gilmore as well. She asserted that the court did not need to consider the requirements of the Virginia long arm statute but should make a determination of personal jurisdiction based only on the limitations of due process imposed by the Fourteenth Amendment.
The three lawyers for the Defendants then offered their rebuttals. Here are the highlights: Grossman pointed out that the case law in the Fourth Circuit (Virginia is in the Fourth Circuit) required the court to apply the state’s long arm statute. Walker pointed out the misrepresentation by the Plaintiff with respect to the Stranahan declarations and cited their locations in the record. Bolling simply repeated the fact that Allen West didn’t say or publish what Gilmore claimed and that there was no evidence to support Gilmore’s claim.
The judge took the case under advisement, and we’re waiting for a ruling.
My podcasting partner Stacy McCain and I plan to be in Charlottesville tomorrow to cover the motions hearing in the Gilmore v. Jones, et al. defamation LOLsuit. Brennan Gilmore, the person who made the cell phone video of a car ramming into a crowd and killing a woman during the Charlottesville riot, is suing Alex Jones and a random collection of bloggers, claiming that they are somehow responsible for alleged harassment done by third parties. While the hearing will deal with motions to dismiss, the judge has deferred consideration of the award of costs and attorneys’ fees pursuant to any applicable anti-SLAPP statutes and consideration of sanctions for now.
Get on Gab.
GoDaddy participated in the deplatforming of Gab by withdrawing as the registrar for the gab.com domain. Epik has announced that it has stepped up and will serve as the new registrar. Epik’s CEO has posted a statement explaining why.
De-platforming a haven of free speech is not about left or right. Anyone who remembers studying civics is familiar with the concept of inalienable rights — rights that a worthy government can only protect but would have no moral authority to take away. The idea of Natural Law and Inalienable Rights dates back to Ancient Greece, if not before. Tolerance for competing views — including those protected by Freedom of Speech and Freedom of Press — is not an American concept even though the Founding Fathers of the United States built a prosperous nation around the concept.
To the casual observer, the case of Gab.com seems like it is something new. It is not. It is history repeating itself. While there are consequences to actions, there is also the proverbial risk of throwing out the baby with the bathwater. My hope, for all of our sakes, is that Gab.com treads wisely, using its liberty for the betterment of most, and the enlightenment of all.
Read the whole thing.
One of the differences between Team Kimberlin and many of us he has sued is our support for the First Amendment. We support every American’s First Amendment rights, even those of the members of Team Kimberlin. Thus, when Roger Shuler was arrested for violation of an unconstitutional gag order, many of us went on record supporting his cause. I did in a post titled Locked Up for the Wrong Thing published five years ago today.
* * * * *
Roger Shuler seems like a complete wacko, and it may be that he should be locked up somewhere. However, he’s now in the slammer for violating an unconstitutional court order. He may be where he needs to be but for the wrong reason.
First, unlike Aaron Walker who, when faced with a unconstitutional court order last year, obeyed that order until it was struck down, Shuler violated the order issued against him.
UPDATE—Stacy McCain provides some more perspective concerning Roger Shuler.
UPDATE 2—Aaron Walker has further analysis here.
* * * * *
Free speech has to allow for stupid, irrational, crazy, provocative, and offense speech.
Zach Beauchamp has an error-filled post over at Vox claiming that leftist professors are more likely to be fired for political speech than conservatives are. He cites the data an conclusions from a Canadian study showing that between 2015 and 2017 three times as many leftist profs were fired for their speech than conservatives.
When dealing with probability, something is considered more likely if the odds of its occurrence are higher than another event. If there are roughly ten times as many leftists professors as there are conservatives (and that’s close to the Real World average) and only three times as many are being fired, then the odds that any given conservative will be fired are roughly three times greater than that happening to any given leftist. The exact value will depend a bit on the size of the population of profs. Math is hard, but that doesn’t change the meaning of likely.
Beauchamp uses his erroneous conclusion to spin up an attack of the actions some states legislatures have taken to protect free speech on public college campuses. As organs of the State public schools are constrained by the First Amendment.
In Wisconsin, the strictest of these states, rules drafted by the state university’s board of regents allow students to be expelled if they are found to have disrupted the speech of other students three times.
Protecting free speech on campus by expelling students for their political activism: just what the First Amendment’s drafters intended.
Well, yes, that’s exactly what the Founders intended. The right to peaceably assemble implies the right not to have that assembly disrupted. Violence and intimidation are not protected forms of speech.
Beauchamp seems to have trouble with both probability and civics.
Facebook, YouTube, and iTunes have kicked Alex Jones off of their platforms. If those editorial decisions had been based on the vileness of some of the ranting on InfoWars, they would have been in line with my decision here at Hogewash! to ignore Jones as much as possible. But they don’t seem to be. They seem to be based on appeasing a social media mob.
Apple, Alphabet, and Facebook are private companies and are entitled to make decisions about how they wish to operate. They may view banning InfoWars as a good business decision or as a proper moral act. However, as operators of large swaths of what has become the world’s public square, they have a moral responsibility to maximize access to the venues they operate. As American companies in that public square, they have a social (but not legal) responsibility to maximize free speech. If those responsibilities are at odds with their corporate goals, they should exit that part of the market.
A case can be reasonably argued that Alex Jones has overstepped the boundaries of free speech. Indeed, there are defamation lawsuits pending against him. Banning him for such defamation could be proper. Banning him for being politically incorrect might be legal, but it would likely be at odds with American society’s traditional support for free speech.
UPDATE—David French offers a better explanation of my points here (at the NYT of all places!).
Prof. Reynold’s offers these comments at Instapundit—
A few points: (1) This is absolutely the first stage in a coordinated plan to deplatform everyone on the right. It’s not really about Alex Jones at all. (2) Aside from its free-speech* implications, which are serious indeed, this also looks like an antitrust violation: Media companies, which compete with Jones for eyeballs, colluded to get other media companies to shut him down. Were I Jones, I’d file an antitrust suit. This is more than arguably conspiracy in restraint of trade (and possibly a conspiracy to deprive him of civil rights). (3) This is proof that we need to break up these big tech companies, which exercise way too much power via their near-monopolies. That they coordinate in the abuse of those monopolies only makes it clearer.
* Note that I say “free speech” and not “First Amendment.” The First Amendment only limits government, but “free speech” is — or at least until very recently was — a broader social value in favor of not shutting people up just because we don’t like their ideas or politics. As for the “private companies can do what they want,” well, that’s not the law, or the custom, and hasn’t been for a long time. It’s especially not true where the companies have, as these companies have, affirmatively represented to users and shareholders that they don’t discriminate based on viewpoints.
UPDATE 2—Jonah Goldberg adds this at NRO—
But part of the problem is that platforms such as Google, YouTube, Twitter, Facebook, etc. operate almost like public utilities. Indeed that’s one of the ironies about the battle lines drawn over Alex Jones. As a broad generalization, the people who loved net neutrality, precisely because they want the Internet to be like a public utility, cheered Big Internet for banning Jones from its platforms. Meanwhile, many of the people who hated net neutrality were outraged by the idea that private companies could “censor” voices they didn’t like. A real public utility can’t deny services to customers just because it doesn’t like what they say or think.
One of the reasons I didn’t like net neutrality is that when you treat private enterprises like corporatist partners of the state, they become corporatist partners of the state. I don’t want the government to be invested in any private business for a host of reasons, not least among them: because the state will never stop attaching more strings to their symbiotic relationship. Another reason: Such public-private partnerships are problematic in any economic realm, but they are particularly pernicious when issues of political speech are involved. Also: They are inherently monopolistic insofar as the state becomes invested in the entities it controls and seeks to protect them from the creative destruction of the market. I want to live in a country where Google and Facebook can be rendered obsolete by something better, without the state rushing to their rescue.
When Italy adopted that sort of state corporatism, they called it Fascism.
I’m old enough that I can remember when universities held themselves out to be places of free enquiry. That seems to have fallen out of fashion. Students, faculty, and staff at public institutions are able to seek protection via the First Amendment (for now), but many private institutions are becoming especially unsafe spaces for politically incorrect speech and thought.
The current poster school for such shutuppery is Marquette which has said that it intends to fire a tenured professor for blogging unless he apologies. Paul Caron has the story. (H/T, Instapundit, who comments, “The worst school in America for free speech.”)
Adam Liptak has a piece over at The New York Times worrying that the recent Supreme Court decision striking down an Arizona town’s signage ordinance will
roll consumer protection back to the 19th century.
I suppose one doesn’t have to worry about free speech rights if he thinks he is protected by the freedom of the press clause in the First Amendment.
The Chancellor of UC Berkeley has sent out an egregious email concerning “free speech” on campus. Ken White takes him to the woodshed.
People like Chancellor Dirks don’t just seek to raise a generation of civil Americans. They seek to raise a generation of Americans who look to the state to tell them what speech is acceptable. This is vile and shameful.
Read the whole thing.
I’m having supper at Chick-fil-A on Wednesday. My schedule would have me eating out anyway, and I like their grilled chicken sandwich. But there’s an additional reason this Wednesday. Folks who value free expression are eating lunch or supper there as an expression of support for the company and it’s owners’ right to express opinions without being punished by political hacks.
Aaron Walker, a guy who has been doing quite a lot for bloggers’ First Amendment rights, explains why this is important here.
Adam Turner has an excellent post over at PJ Media concerning the French response to Islamic bullying of free speech (such as the firebombing of the offices of Charlie Hebdo). Any post that contains a statement like this
I am shocked to be saying this, but the U.S. needs to emulate the bravery of the “cheese-eating surrender monkeys” when it comes to standing up for free speech against Islamist violence.
is worth reading. Read the whole thing.