Mediaboss Marketing

The difficult question of who gets to decide what is lawful speech protected by the First Amendment and what is not is one of the questions that members of a legislative panel investigating Big Tech are pondering.

The Arizona House of Representatives Committee on Oversight, Accountability and Big Tech, which held its second meeting on Monday, is looking into ways to stop government officials and employees from pushing social media companies to censor speech that those officials flagged as misinformation. The creation of the ad hoc committee, chaired by Scottsdale Republican Rep. Alexander Kolodin, was at least partially inspired by the past actions of Gov. Katie Hobbs, when as secretary of state, she and others in her office asked Twitter to take down posts that contained election disinformation.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE

Dean John Sauer, the former solicitor general of Missouri who has won injunctions in Missouri and Louisiana blocking the Biden administration from communicating privately with social media companies to urge them to take down content, shared with the committee his thoughts on government censorship. In 2020, he was the counsel of record in an amicus brief filed on behalf of several Republican attorneys general after the 2020 election in a failed bid to challenge the results of the presidential race in Pennsylvania, Wisconsin, Michigan and Georgia.

Sauer told lawmakers that monitoring of social media posts through a collaboration among state, local and federal officials, along with academic researchers at the Stanford Internet Observatory, has been going on in the U.S. since 2020. He claimed that the federal government used these researchers to launch a mass flagging campaign that it could not undertake on its own.

The federal government cannot induce private entities to do what it cannot, he said.

Sauer added that most social media platforms already have their own moderation policies, but they usually arent very aggressive in enforcing them, either because they dont have the resources or because there isnt a good economic incentive to do so.

He says that these people all worked together to try to censor protected political speech.

They want to stop posts from going viral, he said.

He added that a great example of this was when officials from the Arizona Secretary of States Office asked social media platforms to remove social media posts about Arizonas Sharpiegate. This happened in 2020 when a false claim that ballots in Maricopa County werent counted because voters used Sharpie markers to fill them out went viral on social media.

Thats core political speech thats being shut down on the basis of viewpoint, by state and local officials, Sauer said, while failing to acknowledge that the Sharpie claims were objectively untrue.

They want platforms to take down admittedly true information that contradicts preferred government narratives, he said later, predicting that the government intends to keep doing so through the 2024 election cycle.

He said that what was then called misinformation by senior White House officials from the Trump and then the Biden administration were later determined to be respectable, defensible viewpoints, including that COVID-19 was created in a lab in Wuhan, China, that COVID vaccines were not effective in stopping the spread of the disease and that voting by mail was an easy system to cheat.

But what constitutes a respectable, defensible viewpoint depends on who is making that determination, with Sauer claiming that very debatable viewpoints get silenced.

While the possibility of a lab leak cannot be ruled out, most scientists do not believe that is how COVID originated. Although Pfizer was not required to test whether its initial vaccine stopped the spread of COVID, only testing to determine if it protected the receiver from becoming ill, subsequent research has proven that vaccination did contribute to slow the spread of the disease. And while some continue to claim that voting by mail is open for rampant fraud, there is no evidence thats the case.

Sauer argued that White House officials urged social media platforms to take down the truthful stuff because it was too effective and too persuasive in countering the federal governments own arguments.

But Sauer used the attempted censoring of former Fox News host Tucker Carlson as an example of content that he said was truthful and too persuasive, even though lawyers for Fox told a judge in 2020 when Carlson was accused of slander that viewers should know Carlson was not stating actual facts on his show but exaggerating and making non-literal commentary.

Sauer made several suggestions for the Arizona legislature to consider implementing into law when it reconvenes in January, including prohibiting government actors from flagging social media posts for removal and allowing private citizens to sue for damages for every social media post taken down at the request of the government.

Ilya Shapiro, a conservative legal scholar whose talks at college campuses across the country have been the target of protests, spoke to the committee about the coercive power the government has over social media companies when it asks those companies to delete certain posts.

The legality of those requests depend on whether the social media platform really has the power to deny what the government is asking, he said.

Shapiro argued that the best way to deal with government censorship is to create more transparency, by enacting a law that would require government officials and workers to disclose to the public all requests to take down social media posts.

In light of government power over social media, these requests are perceived as demands or veiled threats, he said, adding that social media companies want to stay on the good side of their regulators.

Sunshine is the best disinfectant, he said.

Sauer added that the question of whether social media companies can censor speech themselves, without government influence, will be heard by the U.S. Supreme Court in February. The Texas law in question would allow the state government itself to take control of content moderation for social media sites.

Also offering his thoughts during the meeting was Carl Szabo, vice president at NetChoice, a tech trade organization that gets funding from companies including Amazon, Google and Meta, which owns Facebook.

Szabo advocates for freedom of choice on the internet. NetChoice challenged the Texas law that will go before the Supreme Court in February, to argue that the state cannot compel companies to host speech they dont agree with.

When it comes to social media platform rights to censor content, Szabo pointed out that many of the posts that companies remove on their own are spam, and any law that might unintentionally stop companies from deleting those posts could end up with a clog of spam posts, making a site essentially unusable

He added that social media companies and law enforcement still need the ability to report and remove content that includes things like child sexual abuse and graphic violence, so lawmakers should keep that in mind when crafting legislation, being careful not to entirely ban government employees from flagging posts.

NetChoice has filed lawsuits in both Texas and Florida, challenging laws that say the platforms cant remove any political content. NetChoices argument is that the First Amendment bars the government from compelling a business to say something that it doesnt want to say, just the same as it cant limit speech.

Political speech is in the eye of the beholder, Szabo said, adding that, under Texas and Florida laws, social media platforms would be required to host terrorist recruitment videos, because that could be considered political speech.

NetChoice won its challenges to both of those laws at the trial and appeals courts, and both laws are currently blocked until the cases are heard by the U.S. Supreme Court.

Kolodin asked whether the government could implement a law simply saying that social media cant censor lawful speech, but Szabo countered that its difficult to cover all the bases, and that what is considered lawful could be a matter of opinion.

Saying that a platform must host speech collides directly with the First Amendment, Szabo said.

Kolodin told the committee that hell be mulling over these issues until the legislature begins its next session in January.

View original post here:
Who gets to decide what the truth is when social media is rife with ... - Arizona Mirror

After George Hawkins completed a 13-year term in a Virginia prison for attempted murder, he asked the state last spring to restore his right to vote. So far, the administration of Gov. Glenn Youngkin, who has unfettered discretion over such requests, has twice turned him down with almost no explanation.

Governor Youngkins authority is enshrined in Virginias State Constitution. But now a lawsuit filed by the Fair Elections Center, a Washington, D.C.-based voting rights organization, argues that the federal Constitution limits that power.

The suit, in federal District Court in Richmond, claims that the First Amendment bars Governor Youngkin, a Republican, from arbitrarily silencing Mr. Hawkinss voice in political affairs. Instead, it calls for Virginia to set rules governing decisions on restoring voting rights.

Otherwise, the lawsuit says, governors could say their rulings on voting rights were impartial, while secretly basing their decision on information or informed speculation on the applicants political affiliations or views.

Last week, U.S. District Judge John A. Gibney allowed the case to proceed, putting off a decision on whether state rules on granting clemency are subject to judicial review until after hearings early next year.

The stakes are potentially large in the Virginia suit and a similar one in Kentucky. (A third state, Iowa, also vests power over voting in the governor but is not being sued because an executive order restores the right to former prisoners who have completed their sentences.)

More than 66,000 Virginians on probation or parole remained disenfranchised as of 2022, according to the Sentencing Project, a criminal justice advocacy group.

In Kentucky, Gov. Andy Beshear, a Democrat, signed an order in 2019 that has automatically restored the franchise to more than 190,000 people. But the lawsuit there challenges the governors decision to exclude from automatic restoration more than 55,000 former prisoners who committed high-level felonies like murder or were convicted outside state courts.

In court arguments, the state said this summer that the only standard for restoring voting rights to those not covered under automatic restoration is whether the governor judges the applicant worthy. In nearly four years, Governor Beshear has personally restored rights to 60 people.

But when a criterion like worthy can encompass peoples skin color, political views or even their deference to authority, both suits argue, it cannot justify a government decision to limit a citizens political rights.

Most states either automatically restore the voting rights of former prisoners or have written guidelines on the matter. Virginia is the only state that still places all voting rights decisions in the governors hands, the result of Mr. Youngkins decision to abandon the automatic restoration policy of his Democratic predecessor, Ralph Northam.

Government attempts to silence citizens because of their opinions or behavior, commonly called viewpoint discrimination, have long been seen by courts as particularly offensive First Amendment breaches. And the Supreme Court has frequently ruled that government officials cannot arbitrarily deny First Amendment rights.

But whether those legal principles apply to a governors decision on the right to vote remains in dispute. In the Kentucky suit, the Sixth Circuit Court of Appeals already has ruled that they do not. That power, the court said this summer, applies to licensing decisions like granting parade permits, not to a governors pardon powers. The Elections Center plans to appeal the decision to the Supreme Court.

Lawyers for Governor Youngkin made the same argument in the Virginia lawsuit. State rules for granting clemency are rarely, if ever appropriate subjects for judicial review, they wrote in a September filing.

A spokeswoman for Governor Youngkin, Macaulay Porter, said in an email that the governor firmly believes in the importance of second chances. She said voting-rights decisions take into consideration the unique elements of each situation, practicing grace for those who need it and ensuring public safety.

One scholar of First Amendment law, Kevin F. ONeill at Cleveland State University College of Law, said courts may not agree that First Amendment protections that apply to issues they commonly see, like the granting of parade permits, also cover far less common cases, like a governors refusal to restore voting rights.

At the least, he said, a plaintiff would need to show that some denials of voting rights are rooted in arbitrary factors like race or politics, not just that they could be.

Ordinarily, he said, you cant win a constitutional case based on hypotheticals.

Mr. Hawkins, the onetime Virginia convict, went to prison at 17 after being singled out by police officers for a shooting incident in a crowd that left him and two others wounded. He has never cast a ballot.

I fought my case from start to finish, he said, from the day I was convicted until the day I came home this year. Being denied the vote, he said, is like saying my sentence aint enough.

He added: I dont now what makes me ineligible, I dont know when I could be eligible. Im kind of free like a second-class citizen. I dont want to be a nonvoter for the rest of my life.

See more here:
Lawsuits Challenge Voting Rights Left to Governor Discretion in ... - The New York Times

Gabby Miller is staff writer at Tech Policy Press.

The popular video sharing app TikTok, which is owned by the China-based parent company ByteDance, has come under increased scrutiny in the past year over security and privacy concerns, as well as fears that the apps algorithms and design may harm mental health, especially for children and teens. Over the course of the last week, there were multiple legal developments in state and federal courts that may affect the platforms future. The Utah Division of Consumer Protection (UDCP) launched a lawsuit against the company, a California judge greenlit a slew of claims against TikTok and other tech giants, and a challenge to a law banning TikTok in Montana had its first hearing in court.

Last Tuesday, Utahs Division of Consumer Protection (UDCP) sued TikTok over its surreptitiously designed video sharing app. The Utah regulator claims that TikTok uses features to hook young users and mislead parents about the apps dangers to childrens mental health and well-being. The regulator alleges the social media giant illegally baits children into addictive and unhealthy use, blatantly misrepresents the apps safety, and deceptively portrays itself as independent of its China-based parent company ByteDance.

At a press conference announcing the lawsuit, Utahs Republican Governor, Spencer Cox, promised the state will hold social media companies accountable by any means necessary. The lawsuit references the actions of other regulators around the world, including a $368 million fine levied against TikTok by Irelands Data Protection Commission for violating European privacy laws, as well as settlements related to the handling of childrens data with the Federal Trade Commission (2019) and the UK Information Commissioners Office (2023).

A legal challenge to a law banning TikTok in Montana (SB 419) had its first court hearing last Thursday under District Judge Donald W. Molloy. TikTok was joined by five of its creators in challenging the ban, which was passed by Montana lawmakers this spring. The company says the ban is unconstitutional. The lawsuits by the company and the creators accuse Montana of infringing on users First Amendment rights and claim that the state violated its legal authority regarding national security and foreign policy concerns.

Some reports characterized Judge Molloys questions and comments as weighing largely in favor of the plaintiffs. In the hearing, which lasted less than an hour, he slammed the Montana legislature for its paternalistic views of social media users and faulted lawmakers for not taking lesser measures to protect users before passing a total ban. He was also skeptical as to whether Montana could even provide the necessary evidence required to validate the ban. Is there some prohibition for a legislature enacting legislation that may not have any factual basis but is just an opinion of the law enforcement people or some other entity? asked Molloy, before promising he will decide whether to grant a preliminary injunction before the bill takes effect on Jan. 1, 2024.

Montana was the first state to pass such a ban, but more than thirty states have taken up some form of legislative action restricting TikTok.

Free speech advocates and the tech industry associations, among others, have expressed their support for striking down the Montana bill, with NetChoice and the Chamber of Progress filing a joint amicus brief in August in support of the creators. After Thursdays hearing, the Knight First Amendment Institute at Columbia University offered a statement in support of a preliminary injunction. Theres really no question that TikTok and its users should prevail here, Jameel Jaffer, executive director of the Knight Institute, said in an official statement. Montana simply hasnt offered any persuasive reason why it cant achieve its interests with means that impose less of a burden on First Amendment rights. If Montana wants to protect its citizens privacy, it should pass a privacy law.

On Friday, a judge in California threw out a raft of claims brought by teens and their parents against TikTok, Meta, Snapchat, and YouTube, but allowed claims related to the design of the social media apps to advance. Los Angeles County Judge Carolyn B. Kuhl gave the go-ahead for the lawsuits in California to explore a negligence theory that argues companies have acted carelessly. This advance[s] a novel legal theory that attempts to treat social media platforms as defectively designed products to bypass Section 230, which has been nearly bulletproof in protecting platforms from suits based on user content, according to Bloomberg Laws Isaiah Poritz.

This decision is an important step forward for the thousands of families we represent whose children have been permanently afflicted with debilitating mental health issues thanks to these social media giants, lawyers for the plaintiffs said in a statement, according to Bloomberg. But there are signs that tech industry voices disagree. MediaPosts Wendy Davis quoted Chris MacKenzie, communications director for the Big Tech-funded group Chamber of Progress, as saying the ruling fundamentally misunderstands Section 230.

TikTok is also facing significant federal scrutiny. Despite President Joe Bidens TikTok ban on government devices being held up in the courts, there are some signs of renewed bipartisan energy to pass alternative legislation that would address concerns about TikTok. And TikTok will soon have to answer to the European Union as the Digital Services Act (DSA) takes effect. Last week Thierry Breton, the EUs internal market commissioner, posted a public warning to TikTok along with similar letters to Meta, Google, and X that in order to comply with the DSA, the platform must urgently address illegal content related to the Israel-Hamas war. Only one thing is certain: there is no end in sight to TikToks trials and tribulations.

Gabby Miller is a staff writer at Tech Policy Press. She was previously a reporting fellow at the Tow Center for Digital Journalism, where she used investigative techniques to uncover the ways Big Tech companies invested in the news industry to advance their own policy interests. Shes an alumna of Vassar College, where she studied feminist and queer theory, as well as Columbia Universitys Graduate School of Journalism.

Read more here:
TikTok's Trials and Tribulations Mount - Tech Policy Press

On Dec. 24, 2020, Kenneth Chesebro and other lawyers fighting to reverse President Donald J. Trumps election defeat were debating whether to file litigation contesting Joseph R. Biden Jr.s victory in Wisconsin, a key swing state.

Mr. Chesebro argued there was little doubt that the litigation would fail in court he put the odds of winning at 1 percent as Mr. Trump continued to push his baseless claims of widespread fraud, according to emails reviewed by The New York Times.

But the relevant analysis, Mr. Chesebro argued, is political.

The emails have new significance because Mr. Chesebro is scheduled to be one of the first two of Mr. Trumps 18 co-defendants to go on trial this month on charges brought by the district attorneys office in Fulton County, Ga. The indictment accused Mr. Chesebro of conspiring to create slates of so-called fake electors pledged to Mr. Trump in several states that Mr. Biden had won.

Mr. Chesebros lawyers have argued that his work was shielded by the First Amendment and that he acted within his capacity as a lawyer. They have called for his case to be dismissed, saying he was merely researching and finding precedents in order to form a legal opinion, which was then supplied to his client, the Trump campaign.

Scott R. Grubman, a lawyer for Mr. Chesebro, said lawyers often argue for positions that are not widely held. For example, any lawyer who has ever filed a pleading challenging existing Supreme Court precedent falls within this category, he said. Maybe a long shot, but far from criminal. In fact, its how the law changes over time.

Mr. Trump has also signaled that one of his possible defenses is that he was simply acting on the advice of his lawyers.

But Mr. Chesebros emails could undercut any effort to show that the lawyers were focused solely on legal strategies. Rather than considering just the law and the facts of the case, Mr. Chesebro made clear he was considering politics and was well aware of how the Trump campaigns legal filings could be used as ammunition for Republicans efforts to overturn the results when Congress met to certify the Electoral College outcome on Jan. 6, 2021.

Just getting this on file means that on Jan. 6, the court will either have ruled on the merits or, vastly more likely, will have appeared to dodge again, Mr. Chesebro wrote in the email chain. He added that a lack of action by the Supreme Court would feed the impression that the courts lacked the courage to fairly and timely consider these complaints, and justifying a political argument on Jan. 6 that none of the electoral votes from the states with regard to which the judicial process has failed should be counted.

Of the chances of success, Mr. Chesebro estimated the odds the court would grant effective relief before Jan. 6, Id say only 1 percent. But he wrote the filing has possible political value.

Mr. Chesebro wrote that it was hard to have enormous optimism about what will happen on Jan. 6, but a lot can happen in the 13 days left until then, and I think having as many states under review both judicially and in state legislatures as possible is ideal.

He said the legal filings could produce a political payoff to bolster the argument that there should at least be extended debate in Congress about election irregularities in each state. He added that the public should come away from this believing that the election in Wisconsin was likely rigged, and stolen by Biden and Harris, who were not legitimately elected.

Responding to the email chain was John Eastman, the conservative lawyer who has also been charged in the Georgia election case. Mr. Eastman said he believed the legal arguments were rock solid but the odds of success were not based on the legal merits, but an assessment of the justices spines. And I understand that there is a heated fight underway.

Mr. Chesebro responded: I particularly agree that getting this on file gives more ammo to the justices fighting for the court to intervene. I think the odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be wild chaos on Jan. 6 unless they rule by then, either way.

Mr. Trump had posted to Twitter days before for his followers to come to the Capitol on Jan. 6, telling them to be there. Will be Wild. Thousands of his supporters stormed the building, injuring at least 150 officers and delaying an official proceeding of Congress.

Other emails that Mr. Chesebro sent are crucial in the Georgia case. On Wednesday, the judge overseeing the case, Scott McAfee, ruled that a handful of emails that Mr. Chesebro sought to shield from evidence are admissible under the crime-fraud exception, the standard by which probable cause has been established that the correspondence or a lawyers advice was used in furtherance of a crime.

Mr. Chesebro and Sidney Powell, another Trump lawyer, are the only ones to seek speedy trials, as Georgia allows. Jury selection is scheduled to begin on Monday.

Photographs and videos reviewed by The New York Times suggest that Mr. Chesebro, a quiet Harvard Law graduate from Wisconsin, was in the crowd outside the Capitol on Jan. 6, 2021. He had spent part of that day closely following the conspiracy theorist Alex Jones, who helped lead a mob toward the building.

Alan Feuer contributed reporting.

Visit link:
Trump Lawyer Acknowledged Political Agenda in Election Suit ... - The New York Times

A digital-age dirty-trickster who used Twitter posts that looked like Hillary Clinton ads to spread false information before the 2016 presidential election was sentenced on Tuesday to seven months in prison.

During a trial last spring, prosecutors presented evidence that the man, Douglass Mackey, had joined private Twitter groups where participants reveled in using lies and deceit on behalf of Donald J. Trump, carrying out what one participant termed the deep psyops of meme war.

Much of that activity was protected by the First Amendment, prosecutors said. But they argued that Mr. Mackey committed a crime days before the election when, using the name Ricky Vaughn, he posted images targeting Black and Latino voters that claimed it was possible to vote by text message. The idea, prosecutors said, was to suppress votes for Mrs. Clinton.

One of the images showed a Black woman and another one had a message in Spanish. Both included logos resembling the Clinton campaigns and fine print attributing them to Hillary for President.

Mr. Mackey, who was convicted in March of conspiring to deprive others of their right to vote, declined to address the court before his sentencing on Wednesday.

Before issuing his sentence, Judge Ann M. Donnelly, of Federal District Court in Brooklyn, said that Mr. Mackey had been one of the leading members of that conspiracy and that it had been nothing short of an assault on our democracy.

Mr. Mackeys lawyer had asked in a memorandum to the judge that his client be spared prison, saying his offenses had consisted only of computer clicks.

In 2018, three years before he was arrested, Mr. Mackey started psychotherapy and decided to change his life, the lawyer, Andrew J. Frisch added, writing: The Douglass Mackey who stands before the court for sentencing is not Ricky Vaughn of seven years ago.

Prosecutors asked that Mr. Mackey be sentenced to six months to a year in prison. They wrote that any changes in his life were not because of regret, but because of his unmasking in 2018 as Ricky Vaughn, a notoriously hateful figure who boasted of leveraging a troll army and was included by M.I.T. Media Lab on a list of top election influencers.

Referring to Mr. Mackeys actions as mere clicks minimized their impact, prosecutors said, because his true power was his ability to spread messages to convert his clicks into tens of thousands more.

Mr. Mackeys trial provided a glimpse into a crass world in which far-right activists in Twitter groups called War Room and Infowars Madman sought to sow chaos and division with the goal of boosting Mr. Trump.

I wanted to infect everything, testified one participant, identified only as Microchip, who began cooperating with the F.B.I. in 2018 and pleaded guilty to a conspiracy charge related to his circulation of misinformation.

Evidence showed that participants discussed generating interest in emails stolen from the Clinton campaign by Russia; portraying Mrs. Clinton as a warmonger; and promoting the claim that she had cheated during the primaries to get supporters of Senator Bernie Sanders to hate not just Hillary, but the Democratic Party itself.

Mr. Mackey pushed the hashtag #WriteInBernie, evidence showed, and stated that women and naturalized citizens should not be allowed to vote. He also wrote that Black people were unintelligent and gullible and suggested spreading a hashtag, #NeverVote, in Black social media spaces.

On Twitter, the day after he posted the false voting meme showing the woman, prosecutors said, Mr. Mackey made his motive clear, writing that a key to a Trump victory would be to limit black turnout.

Follow this link:
Man Who Spread Misinformation on Trump's Behalf Sentenced to 7 ... - The New York Times