Category: reason

United Kingdom officials are mulling over harsher criminal penalties for people who say mean things on social media. They are operating under the inevitably abuse-prone assumption that these offensive comments cause psychological harm to people.

Even as the government is threatening a speech crackdown, a case up in Glasgow, Scotland, shows that it is already more than willing to arrest people for saying things officials find offensive.

In the early days of COVID-19, Captain Sir Tom Moore became a “national inspiration” at the age of 100 for his resilience during lockdowns, walking laps in his garden to raise money for National Health Service charities. He was knighted in the summer of 2020. Then he died in February 2021 due to COVID-19 complications. Due to the medication he was receiving for pneumonia, he was unable to receive vaccinations, his surviving family explained.

Not everybody was impressed with Moore’s activism or military background. The day after Moore died, Joseph Kelly of Glasgow tweeted out “The only good brit soldier is a deed one, burn auld fella, buuuuurn.”

Kelly was charged with violating the U.K.’s Communications Act for a “grossly offensive” tweet. On Monday, he was convicted.

Such a conviction could never happen here in the United States (as long as courts continue to enforce the protections of the First Amendment). The U.K.’s laws protecting free speech are not nearly as broad. The Communications Act, passed in 2003, makes it a crime to “send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network.” Those who violate the law face fines and a potential jail sentence of up to six months.

That Moore was dead and therefore could neither hear nor feel threatened by the message was not relevant. What mattered is that other people—particularly the people with the power to enforce the law—heard it and were offended. Kelly’s lawyer attempted to argue that while his comment was “unsavory,” it didn’t rise to the level of offense. The lawyer also noted that Moore was not a member of a “protected class” due to his race or ethnicity (not that it should matter, but in the U.K. it does) and Kelly did not incite violence. The government actually had a 72-year-old woman who saw the tweet testify how much it “hurt” her to “to see someone wishing British soldiers dead.”

This is the law now, yet the U.K.’s Law Commission is actually looking to give police and prosecutors more authority to punish people for what they say. In July, the Law Commission recommended a new offense that would penalize speech on the basis of whether the message “is likely to cause [psychological] harm” to those who read it.

This week, The Telegraph reported that the government is indeed considering these new harsher speech controls, bolstered by a potential two-year prison sentence. The proposal, The Telegraph notes, merely requires that the person writing the message was aware of potential harm or intended for the message to cause harm. It does not require the message to actually harm anybody.

Furthermore, lawmakers are considering a proposal that would potentially punish social media and communication platform managers with possible criminal convictions and jail sentences should they refuse to cooperate with government officials in providing personal information or data about users who run afoul of these speech laws.

Because the bill is still being hammered out, we don’t know precisely what sort of cooperation the government may try to demand regarding users. The draft of this Online Safety Bill, published last year, is an oppressive 133-page list of demands for social media companies. It attempts to both require that companies eliminate any illegal content but also not eliminate any content that isn’t illegal, and document everything about any complaint they receive. They also have to protect users’ privacy—unless, of course, it’s the government demanding information from them about the users.

There are a host of special exemptions for journalists, which makes for some strange incentives. If you want to get away with saying things the government deems dangerous or offensive, just get a job at a media outlet, which likely gives you a larger audience than if you were just some guy tweeting it out.

We do know that some U.K. politicians have been trying to rid the internet of anonymity and shut down the use of end-to-end encryption that keeps third parties from reading user data and communications. These protections can keep people safe from harassment in their private life and protects their information from criminals. But by their nature, anonymity and secrecy make it harder for the government to prosecute people for speech officials deem offensive or harmful. Buried in this safety bill draft is a section that would make it an offense for a person working at a covered social media or communications platform to respond to a government information request with encrypted information that the government can’t read or decipher. Senior managers of companies who do not comply with these information demands could face fines and up to two years in jail.

Kelly’s conviction over a single mean tweet, partly on the basis of the outrage of some elderly woman, should make it clear to everybody that these laws are absolutely not about tracking down and punishing egregious violators for campaigns of harassment and threats. These laws are dangerous and will ultimately cause much more harm to the citizens of the U.K. at the hands of police and courts than angry comments directed toward powerful government officials and celebrities will.

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From yesterday’s decision by Judge Steven Merryday (M.D. Fla.) in Navy Seal 1 v. Biden, following up on an earlier decision:

Harboring a religious objection to the COVID-19 vaccine, service members of each branch of the military, federal employees, federal contractors, and employees of federal contractors, sued on behalf of a putative class and promptly moved to temporarily restrain and to preliminarily enjoin military directives and executive orders requiring COVID-19 vaccination but allowing requests for religious and other exemptions…. An October 18, 2021 scheduling order (Doc. 9) observes that a temporary restraining order directed to the putative class will likely not issue, but the October 18 order states that the plaintiffs may move on behalf of an individual service member subject to a circumstance markedly more acute than the other members of the putative class….

[My] November 22, 2021 order denies a preliminary injunction for the non-service members, defers resolving the motion on behalf of the service members, and requires the defendants to submit on January 7, 2022, a notice containing for each branch of the armed forces information about, among other things, the number of pending requests for religious and other exemptions and the number of requests denied after final appeal….

On January 20, 2022, the plaintiffs moved to amend the complaint. On January 21, 2022, the plaintiffs—in accord with the November 22 order—submit[ted] a supplemental memorandum in support of a preliminary injunction…. At 6:18 p.m. on February 1, 2022, the plaintiffs moved for a temporary restraining order on behalf of two service members allegedly confronting imminent removal from a position of command….

The service members moving for a temporary restraining order comprise a Commander Surface Warfare Officer in the Navy and a Lieutenant Colonel in the Marines….

Navy Commander serves as the commanding officer of a guided missile destroyer in the Navy. Navy Commander joined the Navy in 2004 and has served for more than seventeen years…. On January 28, 2022, the Chief of Naval Operations, the ultimate appellate authority within the Navy, denied Navy Commander’s appeal [of the rejection of a religious exemption].

The appellate denial letter assumes that Navy Commander’s “religious beliefs are sincere and would be substantially burdened.” However, the letter states, among other things, that “[a] waiver of immunizations would have a predictable and detrimental effect on the readiness of you and the Sailors who serve along side you” and that the other preventative measures, which for the last two years Navy Commander has required of the sailors under his command, “are not 100 percent effective and must be implemented in conjunction with immunization to reduce the risk of mission failure.” The letter declines to mention that the Navy has granted 270 medical exemptions and fails to explain the unsuitability of the alternative precautions afforded the recipients of a medical exemption….

Lieutenant Colonel 2 serves as a logistics officer at Marine Forces Special Operations Command at Camp Lejeune, North Carolina. Lieutenant Colonel enlisted in the Marine Corps in 1997…. Before joining the military, Lieutenant Colonel 2 received an abortion after becoming pregnant from rape. This experience caused Lieutenant Colonel 2 to develop strong religious opposition to abortion and to any vaccine developed with fetal cell lines. In the denial letter [as to Lieutenant Colonel 2’s appeal of the denial of her religious exemption], … the Assistant Commandant questions whether receiving the COVID-19 vaccine substantially burdens a religious belief because Lieutenant Colonel 2’s objections to the COVID-19 vaccine “could be made for every FDA approved vaccine [she has] received” in the military. Further, “assuming that COVID-19 vaccination substantially burdens” a religious belief, the Assistant Commandant concludes that “the government’s compelling interests in military readiness and in the health and safety of the force” justifies denying Lieutenant Colonel 2’s request. The denial letter declines to mention that the Marines have granted 234 medical exemptions and fails to explain the unsuitability of the alternative precautions afforded a recipient of a medical exemption….

The order deferring the motion for a preliminary injunction contemplated that some exigent circumstance might require more narrow and interim relief to preserve, pending the outcome of pending matters, the rights of a service member otherwise subject to some adverse action by the military because of the military’s denying, allegedly in violation of RFRA, a service member’s request for a religious exemption….

The record as a whole in this action and the attendant circumstances support the motion by the two service member plaintiffs, and the motion is GRANTED-IN-PART for the following reasons and to the following extent. The purpose of this relief is preservation of the status quo for a week to permit a reasonable and practical opportunity for a hearing and any necessary and additional submissions from the parties. The hearing on further preliminary relief as a result of the pending motion will occur on FEBRUARY 10, 2022 ….

The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence).

One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices. Those arguments both procedural and substantive, are rejected in an action that is distinctively parallel to this action. U.S. Navy Seals 1–26, et

al v. Biden (N.D. Tex. Jan. 3, 2022) (characterizing the military’s review of requests for a religious exemption as “theater” and granting relief to the service member plaintiffs). Rejection on the same or a more encompassing basis is likely in this action (especially if the conduct of the military continues along the present lines).

The two moving service members face either (1) a most-likely-unlawful deprivation of their accumulated status and standing in the United States military, as well as prospective advancement and benefits, or (2) deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption unless the military can meet the statutory burden of proof, which the military has not and likely cannot. On the other hand, the military faces a trivial, if any, prospect of material injury as a result of permitting the service members continued service under the same terms and conditions and with the same privileges and emoluments as currently prevail, especially because the military permits a large group of unvaccinated persons to serve without adverse consequence.

Finally, the military is most likely unable to establish, and certainly has not established, that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces. In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.

The Secretary of Defense and anyone acting in concert with him, as specified in and to the full extent of Rule 65, Federal Rules of Civil Procedure, is ENJOINED through February 11, 2022, from diminishing or altering in any manner and for any reason the current status of Navy Commander and Lieutenant Colonel 2, including their assignment, privileges, rank, or the like. In short, Navy Commander and Lieutenant Colonel 2 must remain “as is” throughout the duration of this injunctive relief….

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The case is Mastandrea v. Snow, handed down yesterday; here’s an excerpt from Judge Thomas’s concurrence:

I concur because I am bound by the decision of New York Times v. Sullivan (1964).

But I agree with Justice Clarence Thomas, Justice Neil Gorsuch, Judge Lawrence Silberman, and others, that New York Times was wrongfully decided and was not grounded in the history or text of the First Amendment. Appellant and other public-figure defamation plaintiffs should not have to prove that the alleged defamation was made with the knowledge that it was false or with reckless disregard of the truth, as this is an “almost impossible” burden ….

New York Times has inflicted real injury on society:

Public figure or private, lies impose real harm. Take, for instance, the shooting at a pizza shop rumored to be “the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton.” Or consider how online posts falsely labeling someone as “a thief, a fraudster, and a pedophile” can spark the need to set up a home-security system. Or think of those who have had job opportunities withdrawn over false accusations of racism or anti-Semitism. Or read about Kathrine McKee—surely this Court should not remove a woman’s right to defend her reputation in court simply because she accuses a powerful man of rape.

The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.

Berisha v. Lawson (Thomas, J., dissenting) (mem.) (emphasis added)….

And once a person’s public reputation is destroyed, there is little opportunity for rehabilitation. It is a rare day indeed when a media outlet or a private actor publishes a front-page or lead story about how their false statements destroyed a person’s reputation. And far too often, the defamed would-be plaintiffs do not have the financial resources to even attempt to overcome the “actual malice” standard created by the court in New York Times….

The decisions in New York Times and its progeny have established an environment in which anyone who might enter the public arena knows that they may be injured by defamation for which there is effectively no legal recourse. In addition, it has led to the destruction of reputations of many who never consented to becoming a so-called “public figure.” No doubt this state of affairs since 1964 has diminished the public good from civic-minded citizens who understandably decline to offer their insights, energy, and wisdom to their fellow citizens, given this legal environment.

Such is the grave injury inflicted on the body politic and on innocent people who cannot now rightfully and legally defend their honor and character from the devastating injuries inflicted by defamation. A person’s reputation is integral to their dignity as a human being. Rosenblatt v. Baer (1966) (Stewart, J. concurring) (“The right of a [person] to the protection of his [or her] own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.” (emphasis added)).

When the media or a private actor defames a victim, the culpable party in essence “steals the reputation” of the victim through character assassination. When a court decision deprives the defamation victim of their legal ability to recover any damages for the theft, that decision is unjust, as it deprives the victim of what is rightfully owed to them.

This is both a violation of the original understanding of the United States Constitution and natural justice:

In this case the right of the plaintiff which defendant is alleged to have infringed was the right to the security of his reputation. ‘The security of his [or her] reputation or good name from the arts of detraction and slander,’ Blackstone says, ‘are rights to which every [person] is entitled by reason and natural justice; since without these, it is impossible to have the perfect enjoyment of any other advantage or right.’

New York Evening Post Co. v. Chaloner (2d Cir. 1920) (emphasis added)….

The particular case involved a lawsuit by a city councilman against a resident, based on the resident’s allegedly telling people that the councilman “was ‘on the take’ with respect to” a particular commercial developer’s application for rezoning, “is or was working for the developer,” and “was on the developer’s payroll.” The trial court dismissed under the New York Times standard, finding “that there was no evidence that the resident knew her statements were false or that the statements were made with a reckless disregard for the truth”; the Court of Appeal agreed.

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When former President Donald Trump issued an August 2020 executive order banning U.S. companies from doing business with China-based ByteDance, which owns TikTok, the only way to circumvent the ban and allow U.S. users access to the popular app would have been through selling the app to an American company. The executive order had effectively banned the app, stymying advertisers’ ability to work with TikTok and app stores’ ability to sell it.

As Microsoft and Walmart vied for the app, federal courts stepped up and blocked Trump’s executive order. The Biden administration rightly chose not to appeal, allowing TikTok’s some 100 million U.S. users to continue using the app. For eight months, the new administration seemed to be at a reasonable impasse: Though not dismissive of the national security concerns that rankled Trump and his advisers, it refrained from making any drastic moves without giving the matter further thought. Better still, it refrained from engaging in the type of America-first corporate meddling that Trump had wrongly sought.

Now, President Joe Biden’s Department of Commerce is trying a different and much more meddlesome approach. The public comment period just closed on new rules added to the Federal Register which “would expand federal oversight to explicitly include apps that could be used by ‘foreign adversaries to steal or otherwise obtain data,'” according to The Wall Street Journal. This would entail forcing foreign apps “to submit to third-party auditing, source-code examination and monitoring of the logs that show user data.”

“TikTok has said repeatedly that it doesn’t share information on American users with the Chinese government, and that its data is held on servers in the U.S. with backup servers in Singapore,” reports the Journal; this justification is apparently not enough to stave off federal government scrutiny, though, as some remain concerned that server placement is irrelevant and that any China-based company could be forced to do Beijing’s bidding, unbeknownst to its U.S. affiliates and customers.

“It’s not encouraging to see federal powers bullying a foreign company into selling off part of itself to a U.S. company, especially through the threat of an outright ban based on entirely hypothetical fears,” wrote Reason‘s Elizabeth Nolan Brown back in 2020. “The [Trump] administration has offered no evidence that the Chinese government is harvesting U.S. user data through TikTok or to what plausible end people’s TikTok data would be valuable to China’s leaders.”

“There is reason to believe that TikTok is being weaponized by the [Chinese Communist Party],” wrote National Review‘s John Mac Ghlionn in 2021, claiming that “this is not hyperbole,” before failing to detail any specific ways TikTok is threatening U.S. app users’ security. (The case against ByteDance overall, and its other products, is much stronger.)

“Remember the major security concerns surrounding Huawei and the legitimate fears of corporate espionage? More recently, in April of this year, the writer and researcher Gordon G. Chang documented the ways in which the Chinese government uses technology to spy on Canadian citizens. Why would anyone assume that the CCP is not doing the same to citizens of the United States, its No. 1 enemy?” he continued. This line of thinking, though common, fails to detail specific ways in which TikTok has compromised U.S. users’ data, as well as whether the new federal rulemaking would actually prevent suspect biometric data collection.

The Trump approach involved wrongly meddling in the affairs of private companies, with seemingly little assurance that such a sale would even be approved by ByteDance’s Chinese higher-ups. Biden’s approach, which could effectively dissuade foreign apps from doing business in the U.S., might not be much better.

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