Tag: posts

By definition, Twitter can’t violate the First Amendment rights of the president, members of Congress, or anyone else. First Amendment violations are things the government does to the people, not the other way around. There is nothing in the Constitution prohibiting Twitter from restricting speech on its platform, and it is certainly not “censorship” (which has denoted government suppression of information since the office of censor was created in Ancient Rome to impose public morality).

This shouldn’t need repeating as often as it does these days. But President Donald Trump and those who support him have been working hard to recast censorship as something private companies can do to the most powerful man in the country (see Trump’s executive order on Twitter) while arguing that government should be allowed to restrict these companies’ freedom of speech, conscience, and association.

The latest round of redefinition comes in response to Facebook saying it would “limit distribution” of a New York Post article about Hunter and Joe Biden due to concerns about its veracity. Twitter also temporarily blocked users from sharing the article, saying that it violated its “hacked materials” policy. (Twitter CEO Jack Dorsey later admitted the rollout of this decision was not great, but did not seem to disagree with it overall.)

Twitter is now actively censorsing two of the three branches of the United States federal government. https://t.co/KWwHMelRzF

— Sean Davis (@seanmdav) October 14, 2020

It was a bad move on the part of Facebook and Twitter, denying users the opportunity to discuss and perhaps counter the claims in the article among themselves (and likely drawing much more attention to the story than it would have gotten otherwise). Doing so also opened Twitter and Facebook up to allegations of suppressing information critical of Democratic presidential candidate Joe Biden at a time when both companies are putting on a big show of being impartial arbiters of information about the pandemic and the 2020 election (a doomed cause which routinely results in poor calls like this).

But here’s the key thing: they don’t have to be fair arbiters of political information.

Facebook could decide to ban any content critical of Biden. Parler, a social media platform for conservative refugees of Twitter and Facebook, could ban anyone questioning the New York Post story. Twitter could disallow all election content and Reddit can nix any posts about narwhals or sloths.

Any of those choices—no matter how politically biased or how weird—would be within their legal prerogative as private entities, which are under no obligation to treat all content equally, to humor information they find unfit, or to set content standards that make any outside sense at all.

Because of the First Amendment, private platforms and publishers aren’t required to air any particular viewpoint. Which means social media companies are protected from having to permit any government official to use their service as a microphone or having to give any particular person, article, or idea a place to call home.

Nor does the federal communications law known as Section 230—often invoked by Trump and other Republicans as a law banning bias on social media—actually require the parties it protects to be politically or ideologically neutral. And repealing Section 230 wouldn’t suddenly make neutrality a requirement. The First Amendment would still exist, and it would still mean that these companies couldn’t be forced to broadcast government messages or to provide refuge for content it deems misleading or even just doesn’t like.

Without Section 230, however, companies would be forced to constantly defend their constitutional rights in court—which is expensive and time-consuming. A lot of them will decide it’s simply not worth it to allow any controversial speech, and define controversial quite broadly. This ends with everyone—Trump fans, Biden fans, and all the rest of us—facing more limits in what we can see, say, and share online.

If a social media company has an overly narrow mission and too many rules, or claims to be a place for all but continually curates and suppresses content in biased way, then the best way to remedy this is by boycotting and helping to build up alternatives, not granting the government broad new powers to regulate media, ideas, and speech.

The best solution to cramped, anti-speech policies by private platforms is for users to browbeat them into being open and transparent with minimal content regulation. And if need be, create alternatives. This is not a perfect solution but it is far better than those using force.

— Nick Gillespie (@nickgillespie) October 14, 2020

We are now leaving the "we wanted to suppress a story but accidentally gave it new legs" stage of the stupidity cycle. Next up: the "we wanted to stop online censorship but accidentally created an online censorship agency" stage of the stupidity cycle. https://t.co/g7Ph0aJhUL

— Jesse Walker (@notjessewalker) October 14, 2020

Trump tweeted about the Post article yesterday evening, writing “so terrible that Facebook and Twitter took down the story of ‘Smoking Gun’ emails related to Sleepy Joe Biden and his son, Hunter, in the @NYPost. It is only the beginning for them. There is nothing worse than a corrupt politician. REPEAL SECTION 230!!!”

It’s obvious why Trump and other politicians cheer the downfall of Section 230, since that would make suppressing speech the government doesn’t like easier. It’s just not clear why private citizens and journalists keep cheering this on.

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FREE MINDS

• The New Yorker on “why Facebook can’t fix itself.”

… the company is moving in several contradictory directions at once. In theory, no one is allowed to post hate speech on Facebook. Yet many world leaders—Rodrigo Duterte, of the Philippines; Narendra Modi, of India; Donald Trump; and others—routinely spread hate speech and disinformation, on Facebook and elsewhere. The company could apply the same standards to demagogues as it does to everyone else, banning them from the platform when necessary, but this would be financially risky. (If Facebook were to ban Trump, he would surely try to retaliate with onerous regulations; he might also encourage his supporters to boycott the company.) Instead, again and again, Facebook has erred on the side of allowing politicians to post whatever they want, even when this has led the company to weaken its own rules, to apply them selectively, to creatively reinterpret them, or to ignore them altogether.

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FREE MARKETS

There were 898,000 new jobless claims filed last week. “The total for the week ended Oct. 10 was the highest number since Aug. 22,” reports CNBC. “The number represented a gain of 53,000 from the previous week’s upwardly revised total of 845,000.”

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QUICK HITS

• With the second presidential debate now canceled, Biden and Trump will each do separate televised town halls tonight.

• Reason’s Nick Gillespie talks to Jia Lynn Yang, author of One Mighty and Irresistible Tide: The Epic Struggle Over American Immigration, 1924–1965, about the past and future of U.S. immigration policy.

• Barron Trump also contracted COVID-19, along with his parents. The 14-year-old “is a strong teenager and exhibited no symptoms,” said Melania Trump in a Wednesday statement, also announcing that she has now tested negative again.

• How math became a weapon against tyranny.

• Today is the final day of the Amy Coney Barrett confirmation hearings. Find all of Reason’s coverage from this week so far here.

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Class 16: The Scope of the 14th Amendment I – The Privileges or Immunities Clause

• Contracting the Privileges or Immunities Clause (816-818)
• Slaughter-House Cases (818-834)
• Bradwell v. Illinois (834-838)
• United States v. Cruikshank (838-42)

https://youtu.be/N-fVWQZgvw4

 

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At First Things, I have an essay on the Barrett confirmation, arguing that Senate should vote to confirm. The objections to her appointment, including objections to her religious commitments and the effect they may have on her jurisprudence, don’t hold up. Here’s an excerpt:

Another objection is that Judge Barrett will be an activist. Here the argument seems to be that, as a faithful Catholic and member of an ecumenical charismatic group, she will inevitably decide cases on the basis of her religious convictions rather than the law—”the dogma lives loudly within you” and so on. But no evidence of this sort of thing exists in her record as an appeals judge, though that record is, admittedly, brief. In her one essay that raises the subject, Judge Barrett suggests that in cases of conflict she would recuse herself rather than impose her Catholic convictions in place of the law, a position that arguably should concern Catholics more than non-Catholics. And, as my colleague Marc DeGirolami has explained, her writings about stare decisis—the idea that judges should stick to decided cases and not overrule them, even if judges think those cases are wrong—are well within the American legal tradition.

Moreover, as Judge Barrett pointed out in a speech at Hillsdale College last year, keeping one’s ideology out of judging is not a problem limited to Catholics, or believers generally. When “you think about the debate about whether someone’s religion has any bearing on their fitness for office,” she told the students, “it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law.” But that isn’t true. “People who have no faith, people who are not religious” also “have deeply held moral convictions,” she said. “And it’s just as important for those people to be sure . . . to set aside . . . personal moral convictions . . . and follow the law.”

The extent to which judges can and should keep personal moral convictions out of the law is of course a matter of debate. Some constitutional doctrines invite judges to import their convictions into the law, or at least make it difficult for judges to avoid doing so. One example is the “compelling interest test” in free-exercise law, which asks judges to evaluate whether the state has a compelling interest that justifies a burden on religious freedom. But there is no reason to think Judge Barrett would have a harder time setting aside her personal convictions than a secular justice would have setting aside his or hers. Besides, progressives have been arguing for decades that the bench should reflect diverse life experiences, which help judges apply the law in empathetic ways. It’s a little late in the day to argue such a thing is unthinkable.

Interested readers can find the whole essay here.

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From yesterdays decision by Magistrate Sanket J. Bulsara (E.D.N.Y.) in Roe v. Does:

In this action against unnamed and unknown defendants, John Does 1–11 …, Richard Roe … moves to proceed under a pseudonym or, in the alternative, to seal the case. For the reasons discussed below, Plaintiff’s motion is denied….

Plaintiff is an individual residing in Brooklyn, New York. He “is an executive coach, consultant, entrepreneur[,] and non-profit director who primarily” works from his residence. Plaintiff alleges that Defendants have “conducted a systematic campaign of anonymously contacting” professional organizations with which Plaintiff is involved to report instances of sexual harassment and assault by Plaintiff or to divulge similar allegations concerning Plaintiff. Plaintiff claims that he was terminated or dissociated from such organizations, and lost “substantial” income, as a result of Defendants’ conduct.

On August 19, 2020, Plaintiff commenced this action against Defendants John Does 1–11, whom Plaintiff believes are not residents of New York but about whom he has “limited identifying information.” Plaintiff seeks compensatory, special, and punitive damages for defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress; a retraction of all allegations made against him; and costs of the suit….

The court notes that there is a strong presumption in American law that lawsuits are to be litigated in public, with the parties identified; sealing and pseudonymity are fairly rare exceptions (especially in federal court). In the Second Circuit, courts considering pseudonymity requests are asked to consider these factors:

1. “whether the litigation involves matters that are highly sensitive and [of a] personal nature”;
2. “whether identification poses a risk of retaliatory physical or mental harm to the … party [seeking to proceed anonymously] or even more critically, to innocent non-parties”;
3. “whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity”;
4. “whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age”;
5. “whether the suit is challenging the actions of the government or that of private parties”;
6. “whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court”;
7. “whether the plaintiff’s identity has thus far been kept confidential”;
8. “whether the public’s interest in the litigation is furthered by requiring the plaintiff to disclose his identity”;
9. “whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities; and”
10. “whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.”

The court goes through the factors one by one, but here are the key points that I think are doing the work:

[A.] {“[B]ecause of the presumption of openness with regard to American judicial proceedings, federal courts generally have been rather rigorous in not allowing the plaintiff to commence an action anonymously or to proceed under a pseudonym.” The Court finds it highly persuasive that Plaintiff fails to and is unable to cite a single case in which a plaintiff, suing for defamation and alleging he was falsely accused of sexual assault, was allowed to proceed anonymously against the victim of the purported assault. In fact, in other cases in this District, such plaintiffs have proceeded under their own names.}

{Some courts have allowed student plaintiffs accused of sexual assault to proceed anonymously in suits against their respective universities given the ages of students involved and the university context. See, e.g., Doe v. Colgate Univ., No. 15-CV-1069, 2016 WL 1448829, at *3 (N.D.N.Y. Apr. 12, 2016) (collecting cases). These cases, which are brought against colleges and universities, not victims of assault (and none of which are relied on by Plaintiff), provide little guidance to the present litigation.}

[B.] [Courts have] recognized the danger that cross-examination of an anonymous plaintiff could be compromised and the risk that a jury would not be able to properly assess the credibility of a plaintiff proceeding under a pseudonym.

Allowing a plaintiff to proceed anonymously may also hamper witnesses coming forward of their own volition to either bolster or refute a plaintiff’s allegations….

[C.] Further, allowing Plaintiff to proceed anonymously while Defendants are not granted such protection could cause embarrassment and stigma to Defendants and undermine principles of fundamental fairness. “Information and allegations that are highly sensitive and of a personal nature can flow both ways.” “There is prejudice against a defendant when a defendant is ‘required to defend itself publicly before a jury while plaintiff could make [his] accusations from behind a cloak of anonymity.'”

[U]nder Plaintiff’s proposal, he would have Defendants publicly, under their real names, defend against allegations that they falsely reported incidents of sexual harassment and sexual assault, while Plaintiff would proceed anonymously. That is, Plaintiff does not propose that Defendants, alleged victims of sexual assault and harassment, should also be able to proceed anonymously, but instead seeks additional discovery so that he may be able to name Defendants publicly.

Courts in this Circuit have denied motions to proceed anonymously made by victims of sexual assault, despite the hardship such an order imposes and the sensitivity around allegations of assault.  See, e.g., Doe v. Weinstein, No. 20-CV-6240, 2020 WL 5261243, at *3 (S.D.N.Y. Sept. 3, 2020) (“Courts in this district have explained that ‘allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym.'”). The Court cannot see how it would be equitable or consistent with these cases to permit Plaintiff to proceed under a pseudonym when victims of sexual assault and harassment are not generally permitted to do so. In other words, Plaintiff’s fairness argument is inconsistent with the general trend to disfavor anonymity in sexual assault-related civil cases. And he compounds this unfairness by seeking to unmask Defendants, while he proceeds incognito….

[D.] Plaintiff asserts that he “will likely not bring the case at all due to fear of retaliatory action” if he is unable to proceed by pseudonym. Further, Plaintiff contends that “[t]he public has an interest in knowing that injustices, such as the one that the Plaintiff has and continues to suffer, are occurring. The public has a further interest in seeing that those perpetrating privacy invasions, especially anonymously on the Internet, are held liable for the harms that result.” Plaintiff further contends that, although “[c]ourts have often found allegations of harm insufficient where plaintiffs have complained that proceeding publicly would cause embarrassment, humiliation, and economic harm,” the “extreme emotion distress” he has suffered makes his case “exceptional.”

[E.] Plaintiff’s arguments fail to address … that the public has an interest in open judicial proceedings. A foundational principle of federal courts “is a fundamental belief that the public has a right to know who is using the courts and for what general purpose.” Plaintiff does not explain how the interest he identified—reducing or deterring false allegations of assault—counsels against, rather than in favor, the public’s interest in having such claims adjudicated with knowledge of his identity….

[F.] Plaintiff states that he would be reluctant to bring the case if he were not allowed to do so anonymously. To the extent that his stated goal of deterring false accusations is appropriate and achievable through this litigation, it counsels against granting Plaintiff anonymity, not in favor of it. It is true that “[p]rivate civil suits, individually and certainly in the aggregate, do not only advance the parties’ private interests, but also further the public’s interest in enforcing legal and social norms.” If Plaintiff is truly concerned and interested in deterrence, such a goal is not advanced in civil litigation by permitting anonymous prosecution. It is instead advanced through a full and complete public airing of the facts and claims. And as explained [above], anonymity often hinders the fact-finding process….

[T]o the extent that Plaintiff’s claims are without merit, given that he is alleging that Defendants have lied, there is certainly a countervailing public interest in knowing the Plaintiff’s identity. “[I]n civil cases involving potentially damaging allegations about a defendant’s conduct, basic fairness requires that plaintiffs disclose their real names.”

The Court is loath to allow an individual accused of sexual assault and sexual harassment to sue his accusers from behind a veil of anonymity, while seeking to out and name his accusers. Requiring Defendants to defend against Plaintiff’s allegations that they lied about instances of sexual assault and sexual harassment may inflict extreme distress, embarrassment, and reputational harm on Defendants and could further deter other similarly situated individuals from reporting sexual abuse….

[G.] {[Plaintiffs] contends that he will be embarrassed and potentially lose additional clients or business. But in evaluating the second Sealed Plaintiff factor, courts do not credit potential embarrassment or economic injury…. “In contrast to evidence of actual physical harm, courts have found that evidence of embarrassment, social stigmatization, and economic harm provides an insufficient basis for proceeding anonymously.” …

Economic injury is recognized under [the other-harm] factor. Plaintiff contends that denying anonymity would “amplify” the “substantial embarrassment, … tarnished professional reputation[,] and professional and monetary losses” he has already faced.  Outside of this conclusory statement, Plaintiff provides no details or specifics about how this lawsuit would cause him additional harm beyond that he has already suffered or continues to suffer. Presumably in defaming Plaintiff, Defendants are using Plaintiff’s actual name with the third parties, and Plaintiff has not explained the nature of any additional harm beyond what he is already suffering if forced to use his actual name in litigation. He also has provided no specifics about the third parties or the quantum of his monetary losses to date. Absent such specifics, his alleged economic injury is little more than speculation.

I think the court was a bit too quick to say that the prospective economic injury to the plaintiff from having his identity revealed is too speculative: It seems to me that the publicity about the lawsuit will further amplify the charges against the plaintiff, even if plaintiff ultimately prevails. But I think that on balance this can’t outweigh the value of public access, as a means of allowing the public to monitor what is being done by the court system, with all the governmental coercive power the courts wield.

Note also that some courts have indeed allowed alleged sexual assault and sexual harassment victims to sue pseudonymously; the court’s reasoning, which relies on the unfairness of letting the plaintiff be pseudonymous while the defendants are expected to be named (once plaintiff identifies them), thus might not apply when both the plaintiffs and defendants seek pseudonymity.

As to the motion to seal the case, the court rejects it out of hand, concluding that the plaintiff hasn’t given any serious argument in favor of such a radical closure.

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Last week I blogged about New York Governor Cuomo’s pandemic order in New York (See here, here, and here). He placed redlines around Orthodox Jewish neighborhoods, and imposed stringent restrictions on prayer and assembly. I will much more to have say about that order in due course. Here, I would like to include a sampling of emails I’ve received in the last week from members of those communities. I think the messages speak for themselves.

Thank you for your honest article—it shows an awareness and the strength to stand up for what is right, even when it isn’t the popular or accepted thing to do. I’m sorry if some Jewish people felt the need to tell you that you’re wrong or outspoken—unfortunately and it is very frightening to see, people are blind to what should be obvious and apparent. If they were able to open their eyes to the truth, perhaps we would be more able to get people together to stand up for our rights. I feel if more people would have the courage and strength the way you did in writing this article, we would not be in the position we are in now, since there is strength in numbers and even more so when we are willing to be outspoken about the truth. Thank you again for your honesty and for your courage.
I wish you only well,

I live in Brooklyn. In a neatly carved out zone so that people who don’t look Orthodox can go to hair salons and restaurants around the corner from Orthodox Jews at the same time the sheriff showed up to check empty school buildings for children. So it is especially frustrating when this rhetoric is permitted. While I don’t have much familiarity with constitutional law, I do think a house of worship has at least as much protection as an essential business even during a pandemic. Particularly when the same govt officials permitted tens of thousands of ppl to gather in protests that were not peaceful. I am attaching a sign that NYC workers put in the elevator of a local office building. It specifically says ‘synagogue.’  They should at least pretend they aren’t targeting the Jews and and write ‘house of worship’.

Thanks for your well written informative article. Crazy how history repeats itself, and how predictable we are as a human race. It’s so disturbing and incomprehensible to me how many influential Jews are just sitting back and watching this happen. Literally allowing it to happen. Silence is definitely not the answer these days. We went from 0 to self destruct in mere months. Who could possibly fathom that this would be America in 2020?! Guess we got too comfortable and cozy thinking this was IT, the ultimate life, and most people left G-d out of the picture… Like I said; we’re so predictable. Anyway, just wanted to thank you, for being a voice. For speaking up. I’m an orthodox Jewish woman from Brooklyn, and don’t have a public social platform, but definitely have lots to say and lots to offer from a real perspective.

Thank you for your accurate portrayal of the situation occurring in New York City today and its chilling parallels to events from the past. We need more voices in the media like yours. Keep up the good work! Signed, An Orthodox Jew in New York City’s Red Zone

Your post has been circulating around in a few of my chats and I wanted to commend you on hitting the nail on the head. Your perspective is refreshing given the difficult times which the Orthodox Jews are enduring, for no good reason. I look forward to reading your insight on this matter as it develops. An Orthodox Attorney.

 

Ty for your recent article explaining Governor Cuomo.  Living in NY for Jewish people is very scary at this time. The way things are unfolding is very unsettling.  I have been living in NY my whole life and have never experienced what we experiencing today. Its really as if we are no more welcomed here as the jews were no more welcomed in Germany and Russia. It’s a sad sad reality. Europe has been experiencing this for a whole and now that it hit my home town it makes it all more scary. My co- workers and myself were all discussing our next move to leave NY. We’re just deciding where to go.  The history is facts and the negative comments just shows how people don’t want to believe facts. The negative comments just further underscores the importance of your article. I appreciate your writing.  Keep the facts coming despite the negativity. people would prefer to think that everything is ok and this will pass and it’s not a wake up call to look at history and see how it’s repeating itself and we should learn from our history. We are not safe any more and we can’t just sit and do nothing.  It’s scary times.

 

Hi, just wanted to say thank you for saying what most Jews are thinking but don’t necessarily have the platform to speak up. I live in Midwood, 11210, on my side of Nostrand Avenue all the Jewish owned stores are shuttered, while just a few blocks away all the stores on the other side of Flatbush Avenue,  still in the same zip code are all open. Shoe stores, electronics,  hair salons, even outdoor dining is being allowed. It’s so obvious that Jews are being targeted and blamed for the current rise in Covid cases which is totally ridiculous. Its frustrating to have to follow our moronic leaders like little mice in a line while others are free to come and go and earn a living.  What’s next? Do I have to pin a yellow star to my shirt with my zip code on it? If it doesn’t stop now it’ll be too far gone to repair and I’d hate to leave my kids a world like that. We really need to assert ourselves before it’s too late. It’s also beyond frustrating to see my kids on their devices doing “school” and falling further and further behind because our schools are all closed. There’s so much more to say and so little time but thank you for letting me vent and thank you for speaking up for all of us who can’t.

 

I really appreciated your article. I live in one of the “red zones” in Brooklyn and as a child of Holocaust survivors I’m starting to understand the baseless hatred that my parents faced.  I never felt the fear of what’s to come as I do now. I’m a born and bred New Yorker who thought I would never leave NY,  the city that I adored! However the Governor and Mayor have made this city intolerable. When I had to buy my young children pepper spray last fall because they were afraid to walk the 3 blocks from their school to our home, neither of them condemned the attacks which were done predominantly by black people. When there were fireworks going off all hours of the night with no end in sight they wouldn’t do anything. Now the streets are teeming with sheriffs, Dept of Bldg’s employees looking to make our lives miserable. My husbands entire office building in Borough Park was targeted today. Inspectors were knocking aggressively on every business door to try to gain entrance to see if there was proper social distancing going on. He said he felt like he was in communist Russia. I guess the worst part for me is the silence all around. Why is nobody speaking up for us? This is what my father described about how his city watched the Jews being rounded up and taken away and no one said a word. I must pick up and leave this city before it’s too late. Thanks again, very well written!

Continue reading “Emails from Jewish Residents in New York City’s Redlined Neighborhoods”