We had just been talking about the upcoming Marvel's Avengers multi-platform game and its very strange plan to make Spider-Man a PlayStation exclusive character. In that post, I mentioned that I don't think these sorts of exclusive deals, be they for games or characters, make any real sense. Others quoted in the post have actually argued that exclusive characters specifically hurt everyone, including owners of the exclusive platform, since this can only serve to limit the subject of exclusion within the game. But when it came to why this specific deal had been struck, we were left with mere speculation. Was it to build on some kind of PlayStation loyalty? Was it to try to drive more PlayStation purchases? Was it some kind of Sony licensing thing?

Well, we have now gotten from the head of the publishing studio an...I don't know... answer? That seems to be what was attempted, at least, but I'll let you all see for yourselves, if you can make out what the actual fuck is going on here. The co-leader of Crystal Dynamics gave an interview to ComicBook and touched on the subject.

So the beauty of Spider-Man, and what Spider-Man represents as a character, and as a world is...again, it comes back to the relationship with PlayStation and Marvel. We happened to be...once you can execute and deliver, when it comes down to choices of where and what Spider-Man can be, that’s a relationship question that PlayStation absolutely has the rights to, that as you guys know, with Sony’s ownership there, and Marvel with Sony saying, ‘Hey, this is something we can do. This is something we can do on this platform.’

If anything was deserving of a Jonathan Swan meme, this must surely be it. I have read the above paragraph no less than ten times and I have no idea what the hell it is saying. There seems to be some nod to Sony's publishing rights for video games and Spider-Man, but, as we've said previously, those rights don't seem to actually exist. Then there's some talk about how special Spider-Man is, alongside "Hey, this is something we can do."

...okay. It doesn't get any better as it goes on.

And so, what we do as creators is say, ‘This is an opportunity that we can make something unique, and fun, and awesome that we all...you just talked about Black Widow, and to be able to have that experience. So we love the idea of being able to bring this character to the PlayStation players.

Blink, blink. But why exclusively? Why wouldn't you love to bring that character to Xbox owners? PC gamers? Nothing in this dump truck of words strung together seems to have anything to do with the exclusivity deal this man's studio struck with Sony. What the hell?

But I really do think people will look at this and say, ‘Yeah, okay, we get that, we can understand the business behind that’, but in general, we’re making this game for everybody.

They sure as shit don't. The response to this deal has been nearly universally negative. Which makes all the sense in the world. Owners of other platforms don't get to play the character. PlayStation owners might be glad they do, but does anyone really think they're also cheering on owners of other systems not getting to play Spider-Man? Why in the world would they even care?

Whatever else, the studio should try harder to explain its decisions rather than simply trot out an ill-prepared studio head to weave a tangled web of words.

Another day in which we get to explain how content moderation is impossible to do well at scale. On Wednesday, Twitter (and Facebook) chose to lock the Trump campaign's account after it aired a dangerous and misleading clip from Fox News' "Fox & Friends" in which the President falsely claimed that children are "almost immune" from COVID-19.

People can debate whether it was appropriate or not for Twitter (and Facebook) to make those content moderation decisions, but it seems perfectly defensible. Claiming that kids are "almost immune" is insane and dangerous. However, where things get sketchy on the content moderation front is that Twitter also then ended up freezing the accounts of journalists and activists who fact checked that "Fox & Friends" nonsense:

Now, tons of people are reasonably pointing out that this is ridiculous, and arguing that Twitter is "bad" at content moderation. But, again, this all comes just a few weeks (has it been a few weeks? time has no meaning) since Facebook, Twitter, and YouTube all received tremendous criticism from people for not being fast enough in pulling down another nonsense video -- one that Breitbart livestreamed of "doctors" spewing utter nonsense about COVID-19 in front of the Supreme Court. Indeed, at least week's Congressional anti-trust hearing, Rep. David Cicilline lit into Facebook for leaving that video up for five hours, allowing it to get 20 million views (meanwhile, multiple Republican representatives yelled at Zuckerberg for taking down the video).

So, if you have some politicians screaming about how any clip of disinformation about COVID-19 must be taken down, it's no surprise that social media platforms are going to rush to take that content down -- and the easiest way to do that is to take down any of the clips, even the clips that are people debunking, criticizing, or mocking the speech. Would it be nice if content moderation systems could figure out which one is which? Yes, absolutely it would. But doing so would mean taking extra time to understand context (which isn't always so easy to understand), and in the process also allowing the videos that some say are dangerous by themselves to remain online.

In fact, if Twitter said to keep up the videos that are people fact checking or criticizing the videos, you create a new dilemma -- in that those who want the dangerous nonsense to spread can, themselves, retweet the videos criticizing the content, and add their own commentary in support of the video. And then what should Twitter do?

Part of the issue here is that there are always these difficult trade-offs in making these decisions, and even if you think it's an easy call, the reality is that it's going to be more complex than you think.

There's this dumb but persistent meme in American culture that somehow the First Amendment simply doesn't exist within the walls of a public school district. This is patently false. What is true is that there have been very famous court cases that have determined that speech rights for students at school may be slightly curtailed and must face tests over "substantial disruption" of the speech in question in order to have it limited. Named after the plaintiff in that cited case, the "Tinker test" essentially demands that schools not simply dislike a student's speech or the discomfort that comes from it, but instead must be able to demonstrate that such speech is disruptive to the school and students broadly. The facts of that case, for instance, dealt with students being suspended for wearing anti-war armbands. Those suspensions were seen as a violation of the students' First Amendment rights, because obviously.

Subsequent cases, such as Morse v. Frederick, have very slightly and narrowly expanded the limitations on speech within schools. In this case, for instance, a student's speech encouraging the use of illegal drugs was found to be a valid target for school punishment. But, narrow or not, some analysis has worried that cases like this could be used to expand the curtailing of student speech:

By contrast, the Eleventh Circuit extended Morse's rationale about illegal drugs to the context of student speech that is "construed as a threat of school violence". Boim, 494 F.3d at 984 (upholding the suspension of a high school student for a story labeled as a "dream" in which she described shooting her math teacher). Moreover, the court concluded that Morse supports the idea that student speech can be regulated where "[in] a school administrator's professional observation ... certain expressions [of student speech] have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment".

Disallowing student speech that amounts to threats of violence indeed seems to make sense. That being said, speaking of "an unhealthy and potentially unsafe learning environment":

You'd be forgiven if you thought that picture was taken from the Paulding County high school six months ago, with so few masks. But it wasn't. Instead, it was taken on August 4th, the first day back to school for Paulding County. Whatever your thoughts on whether and how schools should be opening, you really need to go read that entire article from BuzzFeed. The overwhelming impression left is that Paulding County appears to have reopened its schools in as callous and cavalier manner possible while still staying just inside government guidelines. Masks? Sure, if you want, but they're optional. Distancing? Of course, but we can't really enforce it in any meaningful way. And overall safety?

North Paulding teachers said they too felt they had no choice but to show up to work, even after a staff member texted colleagues saying she had tested positive for the virus. The staffer had attended planning sessions while exhibiting symptoms, one teacher said.

She did not attend school after testing positive. But teachers have heard nothing from the school, they said, which won’t confirm that staff members have tested positive, citing privacy concerns.

The Paulding County School Superintendent, Brian Otott, began reaching out to parents to reassure them that what they saw in the viral photo going around Twitter was fine, just fine. It lacked context, you see. Context, one presumes, is another word for safety. Or, if we are to believe Otott, the context is essentially: yes, this is totally happening, but the state said we can operate this way.

Otott claimed in his letter that the pictures were taken out of context to criticize the school’s reopening, saying that the school of more than 2,000 students will look like the images that circulated for brief periods during the day. The conditions were permissible under the Georgia Department of Education’s health recommendations, he said.

This from the same state that has the 6th highest number of total COVID-19 cases, the 11th most total cases per capita, the 4th most total new cases in the last week, and the 6th most new cases per capita in the last week. So, you know, not the state doing the best job in the country by a long shot at containing outbreaks of this virus.

Which perhaps makes sense, actually, since Otott seems chiefly interested in containing not the virus in his school halls, but rather any criticism of his district. Remember that viral photo that kicked off this discussion? Well...

At least two students say they have been suspended at North Paulding High School in Georgia for posting photos of crowded hallways that went viral on Twitter.

The photos show students packed into hallways between classes, not appearing to practice social distancing and with few masks visible, amid the coronavirus panic. They went viral after being shared by the account @Freeyourmindkid.

Those suspensions being handed out are five day suspensions and are being levied at violations of school rules around using cell phone cameras without permission. A couple of things to say about that.

First, the removal of a student from a School-sanctioned petri dish of a novel coronavirus feels odd as a punishment. Were it not for the intentions of the Superintendent, it would be damn near heroic as an attempt to save these kids from getting sick.

Second, refer back to my two paragraph throat-clearing above. This isn't constitutional. Nothing about the students sharing their concerns amounts to a disruption of school, or anything else that would qualify this protected speech for scholastic punishment. Taking a fearful 15 year old student and punishing him or her for their fear is beyond reproach. And, about those school rules for cell phones:

On Wednesday, an intercom announcement at the school from principal Gabe Carmona said any student found criticizing the school on social media could face discipline.

Again, plainly unconstitutional. One wonders why anyone should have faith in a school administration that isn't even educated enough on the rights of its own students to keep from ignorantly broadcasting its idiocy over school intercoms. Why are these people even allowed to teach children in the best of times, never mind during a pandemic as these kids get herded like cattle to the slaughter through school halls?

While I guess we'll all get to see what happens in this idiotic school district now, and maybe even learn some lessons from what occurs, I'm generally not of the opinion that we should treat our own children like they were the subjects of some kind of bizarre modern-day Tuskegee test.

If you only read one qualified immunity decision this year, make it this one. (At least until something better comes along. But this one will be hard to top.) [h/t MagentaRocks]

The decision [PDF] -- written by Judge Carlton W. Reeves for the Southern District of Mississippi -- deals with the abuse of a Black man by a white cop. Fortunately, the man lived to sue. Unfortunately, Supreme Court precedent means the officer will not be punished. But the opening of the opinion is unforgettable. It's a long recounting of the injustices perpetrated on Black people by white law enforcement officers.

Clarence Jamison wasn’t jaywalking.

He wasn’t outside playing with a toy gun.

He didn’t look like a “suspicious person.”

He wasn’t suspected of “selling loose, untaxed cigarettes.”

He wasn’t suspected of passing a counterfeit $20 bill.

He didn’t look like anyone suspected of a crime.

He wasn’t mentally ill and in need of help.

He wasn’t assisting an autistic patient who had wandered away from a group home.

He wasn’t walking home from an after-school job.

He wasn’t walking back from a restaurant.

He wasn’t hanging out on a college campus.

He wasn’t standing outside of his apartment.

He wasn’t inside his apartment eating ice cream.

He wasn’t sleeping in his bed.

He wasn’t sleeping in his car.

He didn’t make an “improper lane change.”

He didn’t have a broken tail light.

He wasn’t driving over the speed limit.

He wasn’t driving under the speed limit.

Every one of these is linked to a footnote that points to a news article or (in one case) a DOJ investigation dealing with white officers perpetrating violence and other rights violations against Black citizens. (The decision does not provide links to everything listed here. Although there are footnotes appended, only a couple contain actual URLs. I have linked to relevant stories where possible to provide context.)

The decision continues:

No, Clarence Jamison was a Black man driving a Mercedes convertible.

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found. Jamison isn’t a drug courier. He’s a welder.

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

The officer claimed he had a right to perform the traffic stop. According to Officer Nick McClendon of the Richland Police Department, the temporary tag on the vehicle had "folded over," making it impossible to read. Officer McClendon testified that this sort of thing happens when temp tags aren't secured properly and the vehicle is traveling at highway speeds.

That's what McClendon swore to. This is what he said when he was confronted with actual facts:

When Officer McClendon was shown the cardboard tag during his deposition, it showed no signs of being creased. The officer claimed that it either could have folded without creasing or that someone had ironed out the crease.

Yeah, I'm sure Clarence Jamison -- frightened by a two-hour shakedown by a white cop -- did exactly that: went straight home and ironed his dealer plate.

Here's what Jamison testified he did after this two-hour roadside ordeal:

When I first got home, I couldn’t sleep. So I was up for like – I didn’t even sleep when I got home. I think I got some rest the next day because I was still mad just thinking about it and then when all this killing and stuff come on TV, that’s like a flashback. I said, man, this could have went this way. It had me thinking all kind of stuff because it was not even called for. . . .

Then I seen a story about the guy in South Carolina, in Charleston, a busted taillight. They stopped him for that and shot him in the back,33 and all that just went through my mind . . . .

I don’t even watch the news no more. I stopped watching the news because every time you turn it on something’s bad.

The court surmises Jamison is referring to the shooting of Walter Scott by South Carolina police officer Walter Slager. Scott was shot in the back by Slager as he ran away from the officer. Footage captured by a passerby's cellphone appeared to show Officer Slager planting his Taser on the ground near where Scott fell. When the shots were fired, Scott was nearly 20 feet away from Slager. Nevertheless, Officer Slager radioed for help, claiming Scott had tried to grab his Taser.

Moving on from this point, Judge Reeves does something very few courts have: he runs down the history of Section 1983 lawsuits and their ties to both the 14th Amendment and the history of racism perpetrated by law enforcement.

Jamison brings his claims under 42 U.S.C. § 1983, a statute that has its origins in the Civil War and “Reconstruction,” the brief era that followed the bloodshed. If the Civil War was the only war in our nation’s history dedicated to the proposition that Black lives matter, Reconstruction was dedicated to the proposition that Black futures matter, too.

Following this came the 14th Amendment. These were all positive developments, but whites in the South didn't think so. This includes Mississippi, where this case originates. Whites resented the rights given to Blacks, even though they were the same rights enjoyed by white people. Racism ensued.

In Mississippi, it became a criminal offense for blacks to hunt or fish,” and a U.S. Army General reported that “white militias, with telltale names such as the Jeff Davis Guards, were springing up across” the state.

[...]

The terrorism in Mississippi was unparalleled. During the first three months of 1870, 63 Black Mississippians “were murdered . . . and nobody served a day for these crimes.” In 1872, the U.S. Attorney for Mississippi wrote that Klan violence was ubiquitous and that “only the presence of the army kept the Klan from overrunning north Mississippi completely."

Section 1983 -- which allows citizens to sue government employees for rights violations -- is derived from the Ku Klux Klan Act. Congress realized local law enforcement agencies were acting like unofficial wings of the KKK, frequently engaging in violence against Black people. Unfortunately, this proved to be little more than a speed bump as far as systemic racism went.

“By 1873, many white Southerners were calling for ‘Redemption’ – the return of white supremacy and the removal of rights for blacks – instead of Reconstruction.” The federal system largely abandoned the emancipationist efforts of the Reconstruction Era. And the violence returned. “In 1874, 29 African-Americans were massacred in Vicksburg, according to Congressional investigators. The next year, amidst rumors of an African-American plot to storm the town, the Mayor of Clinton, Mississippi gathered a white paramilitary unit which hunted and killed an estimated 30 to 50 African-Americans.” And in 1876, U.S. Marshal James Pierce said, “Almost the entire white population of Mississippi is one vast mob.”

It took nearly 100 years for federal courts to reverse the bigotry of the Southern emancipation backlash.

It was against this backdrop that the Supreme Court attempted to resuscitate Section 1983. In 1961, the Court decided Monroe v. Pape, a case where “13 Chicago police officers broke into [a Black family’s] home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers.” The Justices held that Section 1983 provides a remedy for people deprived of their constitutional rights by state officials. Accordingly, the Court found that the Monroe family could pursue their lawsuit against the officers.

Clarence Jamison, a Black man traveling through Mississippi -- probably noticed things hadn't improved much over the last 50 years. Here's a brief glimpse of his treatment by Officer McClendon:

According to Officer McClendon, he walked back to the passenger side of Jamison’s car before hearing from NCIC. He later admitted in his deposition that his goal when he returned to Jamison’s car was to obtain consent to search the car. Once he reached the passenger side window, Officer McClendon returned Jamison’s documents and struck up a conversation without mentioning that the EPIC background check came back clear. Thinking he was free to go after receiving his documents, Jamison says he prepared to leave.

[...]

According to Jamison, however, as he prepared to leave, Officer McClendon put his hand over the passenger door threshold of Jamison’s car and told him to, “Hold on a minute.” Officer McClendon then asked Jamison – for the first time – if he could search Jamison’s car. “For what?” Jamison replied. Officer McClendon changed the conversation, asking him what he did for a living. They discussed Jamison’s work as a welder.

Officer McClendon asked Jamison – for the second time – if he could search the car. Jamison again asked, “For what?” Officer McClendon said he had received a phone call reporting that there were 10 kilos of cocaine in Jamison’s car. That was a lie. Jamison did not consent to the search.

Officer McClendon then made a third request to search the car. Jamison responded, “there is nothing in my car.” They started talking about officers “planting stuff” in people’s cars. At this point, Officer McClendon “scrunched down,” placed his hand into the car, and patted the inside of the passenger door. As he did this, Officer McClendon made his fourth request saying, “Come on, man. Let me search your car.” Officer McClendon moved his arm further into the car at this point, while patting it with his hand.

As if four asks were not enough, Officer McClendon then made his fifth and final request. He lied again, “I need to search your car . . . because I got the phone call [about] 10 kilos of cocaine.”

Jamison -- tiring of McClendon and perhaps feeling this would speed things up -- agreed to a search. A very invasive and thorough search was conducted but nothing was found.

Officer McClendon later testified that he searched Jamison’s car “from the engine compartment to the trunk to the undercarriage to underneath the engine to the back seats to anywhere to account for all the voids inside the vehicle.”

[...]

Officer McClendon admitted in his deposition that he did not find “anything suspicious whatsoever.”

When the search fails, maybe it's time to call in the Yes Man, which is actually a dog that can give cops permission to engage in searches.

However, he asked Jamison if he could “deploy [his] canine.” Jamison says he initially refused. Officer McClendon asked again, though, and Jamison relented, saying “Yes, go ahead.” Officer McClendon “deployed [his] dog around the vehicle.” The dog gave no indication, “so it confirmed that there was nothing inside the vehicle.”

It may not have ended in death or injury. But it was an injustice all the same. The suspicionless search lasted almost two hours. That's two hours Clarence Jamison will never have back. And it's two hours he could have used at that point, as the court notes:

This explains why [Jamison] was tired. Here he was, standing on the side of a busy interstate at night for almost two hours against his will so Officer McClendon could satisfy his goal of searching Jamison’s vehicle. In that amount of time, Dorothy and Toto could have made it up and down the yellow brick road and back to Kansas. See Lee Pfeiffer, The Wizard of Oz, ENCYCLOPEDIA BRITANNICA (Mar. 19, 2010) (noting the 101-minute run time of the 1939 film). If Jamison was driving at 70 MPH before being stopped, in the 110 minutes he was held on the side of the road he would have gotten another 128 miles closer to home, through Rankin, Scott, Newton, and Lauderdale counties and more than 40 miles into Alabama.

But at the end of all of this, there's nothing for Clarence Jamison, who was subjected to what appears to be a racially motivated fishing expedition by a white cop. Why? Because the Supreme Court has made it almost impossible to hold cops accountable for their rights violations, especially when a cop is clever enough to violate rights in a way the court hasn't addressed before.

Given the lack of precedent that places the Constitutional question “beyond debate,” Jamison’s claim cannot proceed. Officer McClendon is entitled to qualified immunity as to Jamison’s prolonged detention and unlawful search claims.

This isn't acceptable, the judge points out. The Supreme Court has ordained abuse of rights by narrowing its self-crafted qualified immunity doctrine to such a sharp point it's almost impossible for plaintiffs to overcome. This is complete bullshit says Judge Reeves, even as he recognizes he cannot rule any other way. Here's a list of rights violations deemed to be acceptable by courts, due to a lack of on-point precedent.

A review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells “covered in feces” for days; police officers who stole over $225,000 worth of property; a deputy who bodyslammed a woman after she simply “ignored [the deputy’s] command and walked away”; an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.

The courts are supposed to protect citizens' rights. The Supreme Court has made it impossible for courts to do that.

If Section 1983 was created to make the courts “guardians of the people’s federal rights,’” what kind of guardians have the courts become? One only has to look at the evolution of the doctrine to answer that question.

Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”

Nearly 60 years later, politicians, who are unable to continue ignoring police violence against citizens, are looking to strip this protection away from officers. But they're fighting an uphill battle against entrenched unions, powerful law enforcement allies in legislatures, and the Supreme Court itself. And the nation's top court seems unwilling to correct its unforced error. Qualified immunity has given cops permission slips to engage in rights violations and severe misconduct. Crime, for the most part, continues to remain at historic lows. Despite this, police officers are still killing people at the rate of ~1,000/year with no sign of slowing down. That's on top of rights violations that never seem to decline, no matter how much criminal activity does. Qualified immunity encourages abuse and that encouragement -- the Supreme Court's implicit blessing -- is still felt most by Black citizens who have been the target of police violence and abuse for well over 200 years.

A federal judge has happily dismissed one of Devin Nunes' many SLAPP suits. This isn't much of a surprise given what the judge had said back in May regarding Nunes' Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn't want you to read: Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn't think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says "lol, no, none of those are defamatory."

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

The context of defendants’ statements also weighs in favor of being protected opinions. The context of the publication includes the “social context” of the publication, which includes the style of writing and the intended audience.... The Article is written in a first-person perspective and includes numerous instances of Lizza’s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza’s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit -- calling Lizza a "left-wing political journalist, well known for his extreme bias towards Plaintiff" comes back to bite Nunes in this case:

The context also includes “public context or political arena in which the statements were made.”... Plaintiff alleges that Lizza is a “left-wing political journalist, well known for his extreme bias towards [p]laintiff.” .... At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election.... In this public context, the Court must construe the Article in light of this nation’s “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.” ... Accepting plaintiff’s allegations as true, any reasonable reader would construe the Article in light of Lizza’s well know political bias. Thus, any reasonable reader would understand defendants’ use of terms like “secret” or “conspired” as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact.... In this public context, no reasonable reader could construe Lizza’s statements as facts rather than opinions.

Nunes would have lost either way, but it's hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza's articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff’s family’s move was a “secret” or was “concealed,” the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff’s district mentioning the move.... The Article also mentions a Wall Street Journal editorial which discussed plaintiff’s family’s dairy farm and featured a Tulare, California dateline.... Nothing in the context of the Article otherwise implies that defendants’ characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff’s family ties to the district, and instead stated that plaintiff’s “family has operated a dairy farm in Tulare County, California for three generations.” ... Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff.... Nelson told Lizza he omitted plaintiff at plaintiff’s family’s request.... These facts show the basis for defendants’ conclusion that plaintiff and others “conspired” to hide plaintiff’s family’s move, but do not imply the existence of other facts. The reader is “free to accept or reject [defendants’] opinion based on their own independent evaluation of the facts.”

As for the statement in the article about Nunes trying to discredit the Russia investigation and "protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process" is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is “rhetorical hyperbole” and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff’s money was “dirty” and “tainted” was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like “battering ram,” “at all costs,” and “shredding” are similar rhetorical hyperbole as well.

Second, this statement also has no “precise core of meaning for which a consensus of understanding exists” and thus is not objectively capable of proof or disproof..... There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one’s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements “accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.” .... Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants’ statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement -- regarding Nunes' family selling their California dairy farm and moving to Iowa for a new farm -- the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff’s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff’s parents, brother, and sister-in-law currently live and work in Sibley, Iowa.... Regardless, nothing about this statement is defamatory. None of the facts about plaintiff’s relation to various individuals and their real estate transactions tends to harm plaintiff’s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it's about Nunes' family, not himself. Another for being "substantially true." Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and... that's not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff’s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are "defamatory inferences," and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff’s alleged implication because the Article negates those implications. The Article states that plaintiff “has no financial interest” in NuStar. ... The Article also makes clear plaintiff is not involved in managing NuStar. ... (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. “with his son and wife” and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar’s use of undocumented labor. The Article is clear the conspiracy was “to hide the fact that [plaintiff]’s family sold its farm and moved to Iowa[.]” .... Similarly, no reasonable reader could find the “politically explosive secret” referenced in the title of the Article is NuStar’s use of undocumented labor. The Article states “[s]o here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa.” ... Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar’s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, "actual malice" does not mean "he didn't like the guy." It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article.... These allegations, however, are “naked assertion[s]” devoid of “further factual enhancement,” and “labels and conclusions,” that fail to plausibly assert actual malice....

[....]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants “relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.”... Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants’ sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar’s use of undocumented labor.... This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can “bolster an inference of actual malice,” and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author’s relationship with plaintiffs had “gone sour” after their past “unsuccessful business relationship”); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant “entertained serious doubts about the truth of the phone call”).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article.... The amended complaint asserts defendants republished the Article by tweeting links to it.... This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story.... Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it's worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more "defamatory" than anything Lizza wrote about Nunes. Lizza's lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants ... is immaterial, impertinent, and scandalous. Plaintiff’s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants’ motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California's strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) "pre-empt" California's anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That's an argument that comes up frequently in anti-SLAPP cases. And while it's true that a motion to dismiss can -- at times -- serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney's fees award that goes along with most anti-SLAPP laws, including California's. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes' silly SLAPP suits. This result was inevitable, but still created a nuisance -- which likely was the intent all along.

The Python 3 Complete Masterclass Bundle has 7 courses to help you hone your Python skills. You'll learn how to automate data analysis, do data visualization with Bokeh, test basic script, network automation, and more. It's on sale for $30.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Forget banning TikTok, the Trump State Department just suggested it wants to basically ban China from the internet. Rather than promoting an open internet and the concept of openness, it appears that under this administration we're slamming the gates shut and setting up the Great American Firewall for the internet. Under the guise of what it calls the Clean Network to Safeguard America, last night Secretary of State Mike Pompeo announced a program that is full of vague statements, that could, in practice, fragment the internet.

This is incredibly disappointing on multiple levels. While other countries -- especially China, but also Iran and Russia -- have created their own fragmented internet, the US used to stand for an open internet across the globe. Indeed, for whatever complaints we had about the State Department during the Obama administration (and we had many complaints), its commitment to an open internet was very strong and meaningful. That's clearly now gone. The "Clean Network to Safeguard America" consists of five programs that can be summed up as "fuck you China."

• Clean Carrier: To ensure untrusted People’s Republic of China (PRC) carriers are not connected with U.S. telecommunications networks. Such companies pose a danger to U.S. national security and should not provide international telecommunications services to and from the United States.
• Clean Store: To remove untrusted applications from U.S. mobile app stores. PRC apps threaten our privacy, proliferate viruses, and spread propaganda and disinformation. American’s most sensitive personal and business information must be protected on their mobile phones from exploitation and theft for the CCP’s benefit.
• Clean Apps: To prevent untrusted PRC smartphone manufacturers from pre-installing –or otherwise making available for download – trusted apps on their apps store. Huawei, an arm of the PRC surveillance state, is trading on the innovations and reputations of leading U.S. and foreign companies. These companies should remove their apps from Huawei’s app store to ensure they are not partnering with a human rights abuser.
• Clean Cloud: To prevent U.S. citizens’ most sensitive personal information and our businesses’ most valuable intellectual property, including COVID-19 vaccine research, from being stored and processed on cloud-based systems accessible to our foreign adversaries through companies such as Alibaba, Baidu, and Tencent.
• Clean Cable: To ensure the undersea cables connecting our country to the global internet are not subverted for intelligence gathering by the PRC at hyper scale. We will also work with foreign partners to ensure that undersea cables around the world aren’t similarly subject to compromise.

I certainly understand the arguments that certain Chinese companies and technologies may be conducting surveillance on Americans (even though investigations into both Huawei and TikTok haven't shown anything out of the ordinary), but this approach is incredibly short-sighted. First of all, it goes against the basic American stance on openness, especially regarding the internet. That just damages what little moral high ground we had left to stand on regarding the internet.

Second, all this does is justify the Chinese approach. Make no mistake about it, China will turn around and use this to justify its (much worse) practices, by saying "look, even the Americans filter out "foreign" apps and services." Giving the Chinese ammo like that is so incredibly short-sighted.

Third, so much of American technology is still made in China -- including pretty much every electronic gadget and IOT and "smart" device that fills everyone's homes these days. This is going to backfire in so many ways. The trade war and tariffs have already hit parts of the technology industry hard, and this move will certainly lead to retaliation in all sorts of ways -- potentially having a massive impact on American firms being able to make use of factories and technology from China. That will have ripple effects throughout the economy and will likely limit certain innovation possibilities. Indeed, this may even allow Chinese firms to justify abusing technology to do the kinds of surveillance people are now freaked out about.

Fourth, it will allow China to expand its influence elsewhere in the world, showing how the US can't be trusted and plays favorites with its own companies through protectionism.

In short, this is the kind of short-sighted policy that we're all too familiar with from the Trump Administration, but which will do significant damage to the US in the process.

We've been noting for a few weeks that much of the hysteria surrounding TikTok is kind of dumb. For one, banning TikTok doesn't really do much to thwart Chinese spying, given our privacy and security incompetence leaves us vulnerable on countless fronts. Most of the folks doing the heaviest pearl clutching over TikTok have opposed efforts at any meaningful internet privacy rules, have opposed funding election security reform, and have been utterly absent or apathetic in the quest for better security and privacy practices over all (the SS7 flaw, cellular location data scandals, etc.).

Even the idea that banning TikTok meaningfully thwarts Chinese spying given the country's total lack of scruples, bottomless hacking budget, and our own security and privacy incompetence (the IOT comes quickly to mind) is fairly laughable. Banning TikTok to thwart Chinese spying is kind of like spitting at a thunderstorm in the hopes of preventing rain. Genuine privacy and security reform starts by actually engaging in serious privacy and security reform, not (waves in the general direction of Trump's bizarre, extortionist, TikTok agenda) whatever the hell this is supposed to be.

I see the entire TikTok saga as little more than bumbling, performative nonsense by wholly unserious people more interested in money, politics, leverage, and power than privacy or national security. Case in point: desperate to create the idea that TikTok is a serious threat, a new document leak reveals that the Department of Homeland Security has spent a good chunk of this year circulating the claim that a nineteen year-old girl was somehow "training terrorists" via a comedy video she posted to TikTok.

According to Mainer, the video in question was sent to police departments across Maine by the Maine Information and Analysis Center (MIAC), part of the DHS network of so-called "Fusion Centers" tasked with sharing and and distributing information about "potential terrorist threats." The problem: when you dig through the teen in question's TikTok posts, it's abundantly clear after about four minutes of watching that she's not a threat. The tweet itself appears to have been deleted, but it too (duh) wasn't anything remotely resembling a genuine terrorist threat or security risk:

"In the TikTok clip, Weirdsappho first displays a satirical tweet from the stand-up comedian Jaboukie Young-White, a correspondent for The Daily Show, that “thanks” police for “bringing in the army” to combat peaceful protests against police brutality. The tweet encourages protestors to throw “water balloons filled w sticky liquids (esp some sort of sugar/milk/syrup combo)” at tanks, in order to “support our troops."

And yet, after the clip got picked up and spread around by a handful of Qanon conspiracy cultists, it was, in turn, picked up and spread around by utterly unskeptical and uncritical agents at DHS and MIAC, who have a bit of a blind spot when it comes to far right extremism (for what should be obvious reasons), but can be easily worked into a lather where the vile menace "antifa" is concerned:

"Fusion Centers like MIAC, which is headquartered in Augusta and run by the Maine State Police, are engaged in a pattern of spreading misinformation, based on far-right rumors, that raise fears of leftist violence at peaceful protests against police brutality. Earlier this month, Mainer exposed how two social media posts by unreliable sources became fodder for official warnings about anarchist “plots” to leave stacks of bricks at protest sites for use as weapons against police.

In a July 15 article based on the BlueLeaks files, The Intercept revealed how DHS and its fusion centers are hyping far-fetched plots by alleged anti-fascist “antifa” activists despite evidence that far-right extremists pose actual threats to law enforcement personnel and protesters."

The idea that law enforcement and "intelligence officials" can't (or just won't) differentiate between joking political teen videos and serious terrorism threats should be terrifying to anybody with a whit of common sense. But it's not just part and parcel for a law enforcement and intel community that apparently can't behave or think objectively, it's par for the course for this wave of TikTok hysteria that's not based on much in the way of, you know, facts.

The French anti-piracy framework known as Hadopi began as tragedy and soon turned into farce. It was tragic that so much energy was wasted on putting together a system that was designed to throw ordinary users off the Internet -- the infamous "three strikes and you're out" approach -- rather than encouraging better legal offerings. Four years after the Hadopi system was created in 2009, it descended into farce when the French government struck down the signature three strikes punishment because it had failed to bring the promised benefits to the copyright world. Indeed, Hadopi had failed to do anything much: its first and only suspension was suspended, and a detailed study of the three strikes approach showed it was a failure from just about every viewpoint. Nonetheless, Hadopi has staggered on, sending out its largely ignored warnings to people for allegedly downloading unauthorized copies of material, and imposing a few fines on those unlucky enough to get caught repeatedly.

As TorrentFreak reports, Hadopi has published its annual report, which contains some fascinating details of what exactly it has achieved during the ten years of its existence. In 2019, the copyright industry referred 9 million cases to Hadopi for further investigation, down from 14 million the year before. However, referral does not mean a warning was necessarily sent. In fact, since 2010, Hadopi has only sent out 12.7 million warnings in total, which means that most people accused of piracy don't even see a warning.

Those figures are a little abstract; what's important is how effective Hadopi has been, and whether the entire project has been worth all the time and money it has consumed. Figures put together by Next INpact, quoted by TorrentFreak, indicate that during the decade of its existence, Hadopi has imposed the grand sum of €87,000 in fines, but cost French taxpayers nearly a thousand times more -- €82 million. Against that background of staggering inefficiency and inefficacy, the following words in the introduction to Hadopi's annual report (pdf), written by the organization's president, Denis Rapone, ring rather hollow:

Hadopi remains, ten years later and despite the pitfalls in its path in the past, the major player in the protection of copyright, so that creation can flourish unhindered.

Creation could have flourished rather more had those €82 million been spent supporting struggling artists directly, rather than wasting them on the bureaucrats running this pointless joke of an organization. Time to bring the curtain down on the Hadopi farce for good.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.