Journalism Licensing Sounds Like a Good Idea… but….

January 21, 2016

SC Bill

South Carolina’s house bill 4702 seeks to create “The South Carolina Responsible Journalism Registry.” The bill sounds like a pretty good idea. Lets face it, there are a lot of terrible journalists out there. A lot of hacks who don’t deserve the name. When Sabrina Erdely made up the Rolling Stone story about gang rapes at a frat house at UVA, I called it “journalistic malpractice.” But, I spoke merely hyperbolically. Wouldn’t it be great to have a “reporter’s license” that you could lose if you committed grave transgressions like that?

If you’re nodding your head right now, slow down cowboy.

This seems to be another example of good intentions, but something I can’t see working in practice.

There was a time when the title “journalist” was reserved for those working for a known publication. Everybody knew who was a journalist and who was not. Those days are long gone. With the rise of the internet, everyone can potentially be a “journalist”. Any John Doe can easily launch a blog and within a few magical minutes call yourself a “journalist”. Sometimes, they might even be telling the truth.

When it comes to protections for the press and speech protections for the rest of us, the distinction between “journalist” and “just some kid with a blog” is really nonexistent.

When the courts have recently struggled to determine who is a journalist and who is not, the answer has largely been “doesn’t matter.” For example, the Ninth Circuit Court of Appeals looked at that question last year when Crystal Cox, the well-documented extortionist, claimed the title of “journalist.” (See interview with Marc Randazza on NPR here) Ultimately, the Ninth held, like every other court to look at the question, that it really doesn’t matter — that journalists and batshit crazy lunatics get the same First Amendment rights. Similarly, but not identically, an appellate court in Florida looked at one of its journalism protection laws, Fla. Stat. § 770.01 and whether a blogger could claim its protections as well. The court in Comins v. VanVoorhis determined, essentially, that journalism is a thing you do, no matter who you are. (More here)

I think that part of the reason the courts have come to such conclusions is that defining “who is a journalist” is really difficult. But, this law would presumably help cure that problem. Person A has a journalism license. Person B does not. A nice bright line.

But is that a good thing? It strikes me with a little fear.

The First Amendment cannot abide in giving the government the ability to decide who has a journalism license and who does not. If we do that, it is almost certain that someone will abuse that power in order to promote a political agenda rather than a pure “ethical journalism” agenda.

Everyone has an agenda. I’m not sure that I trust some government bureaucrat to have the keys to who has a journalism license and who doesn’t. When you take the high importance of the Free Press Clause and put the keys to it in the hand of a government agency, that can’t end well. Imagine it is January 2002 and a journalist writes sympathetically about Al Qaeda. Would they lose their journalism license? Probably. What about today? Someone writes critically about Black Lives Matter, and there’s an avalanche of letters from crybaby SJWs. Does that affect her license? Write a pro-Israel (or anti-Israel) piece, and do you think your journalism license wouldn’t be on the block, depending on who makes the decision?

Perhaps there is a way to license journalists, which would be compatible with a notion of a free press. If there is, I lack the imagination to picture it. I agree there is a small problem, but we have always had good journalists and bad journalists. The marketplace seems to have taken care of that sufficiently up until now. I’m not ready to solve the problem of bad journalists by giving the keys to the Free Press Clause to some government-blessed regulator.

UPDATE: DUH!

This post originally appeared on Popehat. View it here.


Randazza gets PWNED by Troll

January 21, 2016

Some people in our audience do not know the finer points of trolling…

Wow… there I was, all proud of the article I just wrote about journalism licensing.

And five minutes after posting it, I get word that I’ve been trolled. Yep. The proposed law was a Second Amendment protest. I would love to say “I knew that all along.” No, I did not. I failed to critically examine the story. Epically failed.

I thought about updating the post. No. When I get trolled and epically owned, I need to go to the box for two minutes by myself, and I feel shame.

I go free when you say I go free. I feel shame.

This post originally appeared on Popehat. View it here.


MLK’s First Amendment Legacy

January 19, 2016
Their Rising Voices Sang Alongside Martin Luther King

Their Rising Voices Sang Alongside Martin Luther King

If I were to write about Martin Luther King, Jr.’s contribution to civil rights, I think I would be wasting my time. Far more qualified views are out there, especially today.

However, I feel like it is worth mentioning that he had a part in a profound change in favor of Civil Liberties as well. I speak of nothing less important than N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

That case is the foundation upon which stands most of our modern First Amendment jurisprudence, without which we would not have modern investigative journalism, the right to express our opinions, nor very likely much content on this blog.

That case concerned an advertisement that ran in the New York Times in 1960. The ad, titled “Heed Their Rising Voices,” stated: “As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” The ad went on to state that “In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.” The ad illustratse the “wave of terror” by describing events that took place across the South, concluding with an appeal for donations in order to support the right to vote, the student movement, and Martin Luther King, Jr.’s legal defense fund.

There were indeed some slight inaccuracies in the ad. L.B. Sullivan, a Montgomery, Alabama City Commissioner sued the New York Times for libel, claiming that the advertisement targeted him. The Alabama state court held in his favor, and awarded him $500,000. This was unsurprising given the time, place, and jury makeup.

In writing for a 9-0 majority, Supreme Court Justice William Brennan wrote:

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent. N.Y. Times Co., 376 U.S. 254, 271.

How beautiful that language is. The Court went on to reject any notion that the burden of proving truth is laid at the feet of the speaker. Id. And even though the advertisement had some minor errors, New York Times v. Sullivan held that if there is to be wide open and robust debate, the First Amendment needs “breathing space” in order to survive. And in order to impose liability for merely erroneous reports on political conduct reflects the “obsolete doctrine that the governed must not criticize their governors.” Id.

The ad was, according to the Court, “an expression of grievance and protest on one of the major public issues of our time.” N.Y. Times Co., 376 U.S. 254, 271. And since the decision, it has only gained more traction and more strength, being firmly entrenched to the point that one can not usually write a brief defending a defamation case without citing to Sullivan. Similarly, one should not bring a plaintiff’s side defamation case without seeking to avoid its shores upon which many a censorious asshat finds his ship dashed.

This leaves the American press wildly free — at least in theory.

But for Dr. King’s struggle, we would never have had New York Times v. Sullivan. It may not have been a case or event central to his legacy, but it is central to our profound national commitment to wide-open and robust debate.

In this day and age those who seek to promote Civil Rights often seem to be at odds with Civil Liberties. The First Amendment is seen as the enemy to the “Social Justice” crowd. Today, I try and remind them that there was a time when Civil Liberties and Civil Rights were symbiotically joined.

Lets remember that, on this day set aside to honor Dr. King.

This post originally appeared on Popehat. View it here.


Randazza on Morality and Intellectual Property Rights

January 16, 2016

If the title doesn’t grip you, it discusses “The Slants” case, CUMFIESTA, Fuckingmachines, SCREW YOU, Nutsacks, and Japanese porn.

Marc J. Randazza, Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights, 16 NEV. L.J. 107.

Use the link here to go to the paper on SSRN and please download it!


Netflix, Voi Siete Stronzi

January 15, 2016

Netflix announced that it is going to take action to prevent people from logging in through proxy servers.

“In coming weeks, those using proxies and unblockers will only be able to access the service in the country where they currently are,” David Fullagar, Netflix’s VP of content delivery architecture, wrote in a blog post. “We are confident this change won’t impact members not using proxies. Source

I understand that Netflix has a problem here. Intellectual property rights are territorial in nature, and thus a movie company can sell the U.S. distribution rights to a film separately from the French distribution rights. I agree that content producers have a right to be paid for their efforts. But, situations like this make me understand why people pirate content. It really seems like a misuse of copyright.

I frequently log in to my Netflix account from an Italian VPN. I like to watch movies in Italian. I am teaching my kids Italian, and I like them to watch their cartoons in Italian. The same cartoons that are on my Netflix USA account are also available on Netflix Italy. But, for some reason, Netflix does not give me the option to change the language to Italian, as it does if I log in through an IP address in Europe. Netflix could easily offer the same shows with the Italian language option in the USA, but for some reason, they would rather not.

Zone shifting is a legitimate use. I can understand that Netflix would rather not let me access “Better Call Saul,” from my proxy server. They don’t have U.S. distribution rights to it yet, so technically, if I were to access Better Call Saul on that proxy server, I’m violating someone’s rights.

I have a completely untested legal theory here, that “region shifting” should be considered to be “fair use.” Lets look at it this way, what if someone is in the United States, but they only speak French. Should they simply be out of luck when it comes to watching movies, if the providers refuse to serve up the movies in French? I could forgive them if they didn’t make the movies in French, but if you log in to Netflix from a French IP address, you get the movies in French if you want them — including with French subtitles.

The greatest threat to content producers’ profits comes from torrents. When a movie gets into the torrent stream, all bets are off, and all profits are gone. Sure, some people torrent because they’re too cheap to pay for the content. But, a situation like this makes it pretty clear that the copyright owners are creating a hell of a legitimate argument that torrenting, to watch in your preferred language, is a legitimate activity.

I am not sure if anyone has ever been sued for torrenting a film in order to language-shift, but if they did, I’d be inclined to defend such a suit pro bono.

This post originally appeared on Popehat. View it here.


Charlie Hebdo, One Year On

January 13, 2016

It’s been just over a year since the Charlie Hebdo murders, and I thought it was time to do a little more than simply defy, although I do love that that was Ken’s way of commemorating the date.

On January 7, 2015, a group of lowlives attacked the offices of a satirical magazine for no other reason than they disliked its sense of humor. They believed that their religion trumped anyone’s right to mock it. They believed that their umbrage meant that they had the right to take the lives of those who worked there.

And therein proved that their interpretation of their religion was entirely, utterly, without merit, and worthy of being mocked. And today, they still don’t get it, do they?

Meanwhile, these pieces of trash continue to use violence to suppress humor. Texas, and to a much deeper extent, in Bangladesh. We can not give them what they want. We must continue to mock them, and not let a year simply calm us down and let us move on. The mockery must continue.

I do not single out Islam as worthy of disdain and mockery. I feel that way about all Abrahamic religions. They all trace their roots to an event where a guy’s imaginary friend told him to kill his son, and he said “sure, sounds legit!” Then, the imaginary friend said, “just kidding, just cut off a piece of his dick to show me that you love me.” He still says “sounds legit!” What the fuck else can you expect but madness after that?

I would likely feel that way about all other religions, if I learned enough about them. If you want to practice your religion, by all means, go right ahead. You can believe in a flying spaghetti monster, or a zombie Jesus, or anything else you like.

And dammit, I have the right to mock you for it.

I don’t have that right because I am right. I may be dead wrong. I fully accept that if I ever die, I could be called before some supreme being who will be utterly fucking pissed at me — and if he exists, he damn well should be.

Because I mock him. I mock his followers. I mock lots of things.

As we should be able to.

Does that bother you?

Are your beliefs so fragile, so meaningless, so utterly without merit, that they cannot stand in opposition to mine?
If a “prophet” is so weak that you commit acts of violence against other people because they mock him, then your prophet is not worthy of any respect at all — let alone immunity from mockery.

If your God or your prophet can not take being mocked, then fuck your god and fuck your prophet.

I do not use the term “hero” loosely. But, Charlie Hebdo was bombed before January 7, 2015. Those who worked there knew the risks. They accepted them. And on that day, 12 of them died because they believed in something far more important than any fairy tale.

They believed in freedom of expression.

“Hero” is the right word to describe all of them.

We are only the sum of our thoughts. If the powerful or the fanatical can stop us from expressing them through coercion or violence, we are less human. We all achieve less for being here for the brief time that we get to exist on this rock.

When we got attacked on 9/11, we responded by changing who we were. We responded by curtailing our own liberties, all in the false name of “security.”

Charlie Hebdo’s editor-in-chief, Stephane Charbonnier once said: “I would prefer to die standing than to live on my knees.” A year ago, he died standing.

He died standing for something.

He died standing for freedom of expression.

The correct reaction to terrorism is to do exactly the opposite of what the terrorists want you to do.

I would not normally re-publish these pieces of art. I don’t particularly care for them. But, if these terrorists wanted to take that right away from us by making us afraid, they have sorely failed in their attempt.

With that, I give you what these barbarians tried to take from us.

Fuck your prophet.

And Fuck you.

Je suis Charlie, et je me souviens.

loved-by-dicks

a-star-is-born

CH2

CB1

This post originally appeared on Popehat. View it here.


Twitter Takes a Side in the Culture Wars – Lies About It

January 12, 2016

Twitter announced that in order to combat abuse and harassment on its increasingly unpopular online platform, that it would enact new rules and regulations that would hopefully get control of things. The stated mission was to cut down on loosely-defined “harassment.” But, what it seems to really be is yet another example of someone with a little bit of power behaving arbitrarily in favor of their “team.”

Twitter didn’t call it “censorship.” They called it “fighting abuse to protect freedom of expression.” Ok, fair enough. Since it gives away accounts for free, and every lunatic has access to a computer, the barrier for entry on Twitter is very low. That means that the guy who used to stand on the street corner and scream at the clouds, or the crazy cat lady, both have as much access to Twitter as someone reasonably intelligent. The underside of the human condition is ugly and brutish, and if you spend 15 minutes on Twitter, you figure that out.

Twitter has every right to try and get ahold of things. If I ran Twitter, I wouldn’t be very proud of it. And, its value is rapidly plummeting, both as a website worth visiting, and in financial terms. I’d imagine that this is, in no small part, because people are just sick of the bullshit on Twitter. While you can’t really express much nuance in 140 characters, you sure can express stupidity and cruelty in less than that. You can form a mob and ruin Justine Sacco’s existence with very little effort. Meanwhile, these bite sized chunks of shit do very little to promote discourse.

So I’ll admit that if I ran Twitter, I’d probably engage in a little bit of a crackdown myself. I believe in an expansive view of freedom of expression, but I am not an absolutist. I get close, but I think that free speech absolutism is simply intellectual laziness. There is a line.

Where is it? I’m not sure precisely — that’s part of my personal search for truth, and I’m not done with it yet. But, I do know that we have to draw a line somewhere.

If you recoil in horror, consider Radio Télévision Libre des Mille Collines. In 1994, that radio station was the Zyklon-B of the Rwandan genocide. Would I go back to 1994 and “censor” RTLMC? Yes. But, we must admit, that is a hell of an extreme example. But, it at least demonstrates that I can defend freedom of expression, but I’m not a religious zealot about it. (On the other hand, I do not think I would approve of censorship to prevent hypothetical localized harms).

With that out of the way, I don’t have any problem with Twitter deciding that it wants to be less of a shithole and more of a place where people can go to express themselves and read other peoples’ expressions without it turning into an intellectual trash-heap. Remember: it’s their site, their rules.

Nevertheless, I do fault Twitter for is its hypocrisy and its outright lies about what it claims that it is doing. Twitter is not at all interested in making Twitter a “nicer” place, nor promoting more constructive discourse. Twitter is taking a side in the culture wars, and it has chosen that it will be the destination of choice for the “social justice warriors” echo chamber.

A stark example came to light this weekend when Milo Yiannopoulos discovered that his account had suffered the “discipline” of having his official public figure status revoked. On Twitter, the real public figures get a blue checkmark next to their names so that people realize that they’re dealing with the real celebrity, and not one of any number of imposters, impersonators, or satirists. Mr. Yiannopoulos is, for those who are uninitiated, a conservative who frequently disagrees with the “social justice warrior” mentality. And that’s strike one against him. Yiannopoulos had the audacity to disagree with certain politically correct notions, and thus he was subjected to this minor form of discipline.

His reaction was a bit over the top, but far be it from me to criticize him for being hyperbolic. He immediately launched the hashtag “#JeSuiMilo.” Equating losing a little blue checkmark next to your name to the murders at Charlie Hebdo makes me spit a little. But, I’m not entitled to an offense-free existence, so if Mr. Yiannopoulos wants to damage his own credibility by trying to compare himself to those who actually laid their lives at the altar of freedom of expression, so be it. I’m not going to let that get in the way of the fact that he has a valid point.

And what is his valid point? There’s not a damn way that his account would have suffered any discipline at all had his views not been from the disfavored side of the debate. For all Twitter’s lip service to freedom of expression and prevention of abuse, Twitter believes in neither. As Allum Bokhari wrote, “The fingerprints of social justice warriors, who delight in redefining political disagreement as “harassment,” are all over this new rule. Twitter’s reputation for arbitrary, politically-motivated punishment looks set to grow.”

In fact, in order to test Twitter’s so-called newfound prevention of harassment, I have tracked a number of Twitter accounts and even have set up decoy accounts. In what I’ve tracked, so far, pretty strong “harassment” emanating from accounts that purport to promote a “social justice” or feminist agenda remain unscathed – even with pretty extreme content, up to and including death threats. However, even slightly offensive messages coming from conservative voices wind up being disciplined. Thus far, the experiment has not gone on long enough to actually call it “scientific,” so I’m not going to say that the early stages of studying the bias in Twitter suspensions is ready for prime time – but it is certainly confirming what we hypothesized.

Twitter, we see through your bullshit. It’s okay, you can simply announce that you’ve decided to take a side in the culture wars and you’re just not going to apply the rules the same way to conservatives as you will to liberals. You can say you’re going to discriminate on the basis of gender, sexual orientation, and anything else you want. But please don’t pander to us by trying to tell that this has anything to do with “harassment” or “free speech.” Somebody, or a group of somebodies in your organization has a political agenda and you’re going to use your power, diminishing as it is, to promote that agenda. That’s allowed. Maybe it will even make you more popular than ever, but just cut the lies. Because some of us are watching and we know better.

This post originally appeared on Popehat. View it here.


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