In Space, No One Can Hear You Threaten Lawsuits

I like computer games, and I like defamation law, but when the two collide the result is never your-chocolate-in-my-peanut-butter goodness. Whether it's flailing developers or consumer movements apparently schooled in jurisprudence via a distracting hand gesture and a shovel, game culture makes bad legal culture.

This story is not a departure from that trend.

Star Citizen is an ambitious crowdfunded space sim under (lengthy) development. Like many highly anticipated games, it has fanatical devotees and critics. Recently it drew the unwanted attention of Derek Smart, a name familiar to old gamers like me.

Who is Derek Smart? He's the Orly Taitz of computer gaming. He's a game developer — technically — and a career lawsuit-threatening troll. His team of lawyers is like a fundamentalist preacher's God: they're frequently invoked to terrify, but their existence mostly taken on faith. He's a multi-millionaire, apparently, but then so are Carrot Top and that awful TV woman with the eight cute kids. It's been a long time in American culture since self-made wealth signified someone to be taken seriously.

Anyway, hearing of crowdfunder complaints about the awaited Star Citizen, Smart criticized it. He invoked his vast experience in having produced the Howard The Duck, the Edsel, the New Coke of space sims, a monstrosity called Battlecruiser 3000AD, which is distinguishable from a computer virus in that it was promoted more douchilly. When Star Citizens' developers failed to respond with the adulation to which he is entitled under natural law, Smart characteristically waded in with extravagant and self-promoting lawsuit threats. Smart styled himself a crusading consumer advocate, which would be an apt label if Ralph Nader had appeared before Congress and said "Mr. Chairman, these vehicles are unsafe at any speed. And now, I invite Congress to admire my balls. RELEASE THE LAWYERS."

Controversy and flamboyant figures mean clicks, and gaming-website The Escapist wanted some of that action. They published a hit piece portraying Cloud Imperium Games (developers of Star Citizen) as awful employers driving a doomed project, and sourced it to both unnamed and anonymous sources.

Chris Roberts, CEO of Cloud Imperium, responded by posting a five-page legal threat from his "Co-Founder, Vice-President, and General Counsel" Ortwin Freyermuth, a California lawyer. Mr. Feyermuth argues rather convincingly that Escapist has become the tool of some unnamed evil (Smart, one assumes) and has seriously wronged the company by (for instance) not grasping that more than one person can tell the same lie at once, and by taking a blacked-out ID card as proof that a "source" works for a company that does not, technically, use ID cards.

If he had stuck with the factual refutation, Mr. Freyermuth would have done well. But he had to go and (sort of) act like a lawyer. His letter is full of quasi-legal references, has a closing threat to file suit in both America and the United Kingdom, and includes a cc: to two lawyers. And so Mr. Freyermuth stepped in it.

Freyermuth is a founder, Vice-President, and in-house lawyer. He's a fact witness to what's going on at Cloud Imperium. When he writes a five-page semi-legal rant, he's just creating cross-examination fodder. Moreover, "look, I am referencing lawyers, and even cc'd them" doesn't convince anyone who knows how litigation works. If competent outside litigators are substantively involved, they write the threat letter, not the personally-involved fact-witness client. "Do what I want or I'll bring in our outside counsel" and "look at me cc'ing lawyers" is the "my brother will beat you up" of the business world. Freyermuth cc'd the head of the Litigation Department in the Los Angeles office of Cooley LLP, an 800-lawyer firm. Dropping his name signifies that (a) he's citing a big scary lawyer to seem serious even though the lawyer is not substantively involved, so he should not be taken seriously, or (b) the head of LA litigation for Cooley is involved, but has no client control whatsoever because his client is writing five-page rants, which means the client is not to be taken seriously, plus (c) if Cooley is actually involved it signifies that Cloud Imperium is going to spend a truly stupid amount of money to pursue a defamation case against a hit piece that doesn't actually impact its core function, right at the time that it's fighting rumors that it is in financial trouble. So: some messaging issues.

If you know what you're doing, you bring in the litigators before you start running your mouth. The litigator is there to tell you, in the most supportive and affirming way possible, to shut the fuck up. That way your CEO and key fact witness isn't writing long, angry emails about the facts of the situation, probably getting some of them wrong and probably saying things the legal significance of which he doesn't know. It's not easy to tell the CEO to shut up and stop writing things if you're his underling. Some people get to be CEO by having a Trumpian level of self-regard that makes Derek Smart look like Dobby the House Elf. If you're a sensible GC, you use your outside litigator as the bad cop to control your difficult executive. That way your executive doesn't do don't-take-me-seriously things like post angry messages referring to written statements as "slanderous."

Plus, while Freyermuth makes a fairly convincing case that the Escapist was gullible and incompetent, that's not the relevant standard. The company, and Chris Roberts, are almost certainly public figures, or at least limited-purpose public figures in the gaming world. That means they'd have to prove actual malice to win a defamation case. Constitutional "actual malice" doesn't mean ill-will, as Freyermuth's letter seems to imply. It means knowledge that the statement is false, or reckless disregard for the truth — that is, publishing despite serious doubts about its truth. Cloud Imperium isn't going to satisfy that standard.

Finally, the threat to sue in the United Kingdom is an empty one unless the Escapist has assets there. It's much easier to get a defamation judgment in the UK, but fortunately under the SPEECH Act such judgments aren't enforceable in America unless the plaintiff's case satisfies the requirements of American law — which it won't.

Look, Cloud Imperium, here's some free advice: leave the next-I-call-my-lawyers routine for Derek Smart. Stick to factual refutations without legal bluster, or else shut up and get your scary lawyer to write the letter. The middle ground makes you look foolish.

Down With Peeple

Entrepreneurs Julia Cordray and Nicole McCullough have found a way to monetize and weaponize the worst that humanity has to offer, like some beast made out of reality TV, slankets, and spray cheese. They're launching "Peeple," a web site where people can rate each other romantically, professionally, and personally. The human condition: reduced to one to five stars and a blurb.

This is controversial, and it's probably intentionally controversial to get buzz. The Peeple people assert that they've developed methods to prevent abuse: you must be 21, you can only register to review people if you have a phone number and an established Facebook account, you can (as of now) start a page for someone else but it can only show positive reports unless the person joins Peeple, negative comments are embargoed for 48 hours to give the target a chance to respond, abusive content will be forbidden, and there will be a system to adjudicate claims that reviews are false.

Given an opportunity, some folks will use Peeple in good faith and some will use it to abuse, harass, and antagonize others. That is the natural and probable consequence of its existence. Are these measures sincerely intended to ward off those consequences, or are they a mere gesture? If they are sincere, that's sweet but dumb. Bomb always eventually beats bunker; the urge to screw with other people always eventually beats technological innovation. Cell phone confirmation and a review structure stand no chance against a nation chock-full of mood-disordered twitchers will too much free time on their hands.

How could you abuse Peeple? Let me count the ways. If they're really going to let you open up a "page" for someone else involuntarily — and they may retreat from that — it would be childishly easy to submit a profile picture that is non-obscene but as unflattering as possible.1 Peeple limits you to "positive" reviews of people who aren't members, and embargoes negative reviews? That's fine. Let's see how helpful three-out-of-five star reviews are to your professional reputation. Or let's test their negative-review filter against my creativity and mood. "Julia Cordray is more generous and giving to her household catamites than anyone I know." "Nicole McCullough's slow but steady rehabilitation is nothing short of amazing."

And the review/adjudication process? Either it's going to be hideously expensive to staff and supervise — calling the profitability into question — or it's going to be box-checking automated nonsense.

We'll see. For now, at least, Peeple itself will be protected from defamation claims by Section 230 of the Communications Decency Act, which generally prevents such platforms from being liable for defamation committed by their users. But judges are people too, in a way, and sites like Peeples may induce them to erode Section 230's protections, as the gripe site Ripoff Report has started to do. Edited to add: A commenter points out that Peeple has a Canadian presence. I offer no opinion on how a defamation suit against Peeple would go in Canada.

Peeple's people gush that they want to spread "love and positivity" . . . on the internet. I hope they don't act surprised when people on Peeple act like people. It brings to mind the Blackadder scene when Samuel Johnson catches the oafish Prince Regent looking up dirty words in his new dictionary:

Johnson: Sir! I hope you're not using the first English dictionary to look up
rude words!

Edmund: I wouldn't be too hopeful; that's what all the other ones will be
used for.

Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass

Mark Tyrell Fowlkes had a bad day.

For you or me, that means realizing that there's no credit left on our Starbucks card or our co-workers being annoying or getting a flat tire. For Fowlkes, it meant the Long Beach Police Department forcibly pulling something out of his ass.

LBPD, assisted by the DEA, were wiretapping and surveilling Fowlkes to see if he was dealing drugs. He was. LBPD arrested him once, caught him with drugs and a gun, and released him, probably to see where he'd lead them. A week later, they ran a pretextual traffic stop on him, arrested him, and took him to jail. There they strip-searched him:

Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs.

Officers believed that Fowlkes was not being cooperative displaying his anus and thought he was trying to push something in there. One Sergeant testified that he believed Fowlkes was trying to force an object further into his anus in order to destroy evidence. That's not how anuses work. That's not how any of this works. But to prevent Fowlkes from further hiding or destroying something in his anus, Sargeant Michael Gibbs “delivered a drive stun tase to the center portion of the defendant’s back” and the officers handcuffed him. Officers claim they could see a plastic bag protruding from Fowlkes. With Fowlkes cuffed, tased, and under the control of five officers, the officers decided that immediate action was needed to protect evidence. Sargeeant Michael Gibbs gloved up and pulled the object out of Fowlkes' rectum without seeking a warrant, without medical training or medical personnel, and "without the assistance of anesthesia, lubricant, or medical dilation," producing blood and feces.

So. Not as bad as the day David Eckert had when New Mexico police enlisted the help of a doctor to penetrate him repeatedly, but still bad.

The feds charged Fowlkes with drug and gun possession. That included a count based on the drugs pulled out of him. The trial court rejected his argument that the drugs seized from his anus were illegally obtained. Yesterday, in a revised opinion, the Ninth Circuit decided to put some limits on cops' freedom to root about in our collective asses.

The Ninth Circuit found the warrantless visual strip search reasonable, including the visual body cavity search, mostly on the grounds that the government arrests so many people it would be impractical to get warrants to strip-search them, and because jail safety is important because the government arrests so many people. As Dilbert would say, that's not being circular, it's having no loose ends.

But the Court noted actual limits on intrusions into our bodies. "Therefore, while visual cavity searches that do not require physical entry into a prisoner’s body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not." Did the Court recognize a general rule against sergeants yanking things out of our asses without a warrant? Not exactly. It's the Ninth Circuit, sure, but this is still America. The Court avoided a broad rule. "We need not and do not determine whether a warrant is required to seize evidence discovered during a visual strip search from an inmate’s body because the officers’ conduct here was unreasonable for other reasons." The Court decided that the search was unreasonable — and thus violated the Fourth Amendment — because the officers violated the jail's own written policies requiring a medically trained person conduct cavity searches, because Fowlkes posed no immediate threat, because the officers had no training in such measures that would let them evaluate whether they were safe or necessary, and because the officers did not take any steps to minimize trauma:

Here, the LBPD officers did not take adequate steps to minimize Fowlkes’ physical trauma. They did not, for example, use lubrication or ensure that the removal was conducted under sanitary conditions; they did not seek the guidance or assistance of medical personnel; and they did not assure themselves that removing the object from Fowlkes’ rectum was safe—indeed they did not know the size, shape, or substance of the object. Further, they did nothing to mitigate his anxiety or emotional trauma. They did not, for example, offer him options for removing the contraband or secure his compliance; they did not (and could not) assure him that the removal was safe or being conducted by a trained professional; and they did not (and could not) assure him that the procedure was legal and in keeping with LBPD policy rather than an arbitrary show of force.

The Ninth Circuit — bless its heart — seems to think that physical and emotional trauma were a bug, not a feature, of the officers' approach. But at least we know: there are limits to the judiciary's willingness to let cops conduct medical procedures on you.

So the Ninth Circuit reversed Fowlkes' conviction — on the one count arising from the drugs found in his rectum. It upheld the rest of the conviction.

Isn't justice majestic?

Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer

Arthur Chu, noted for being able to frame things in the form of a question and for being easily agitated, has launched very silly broadside against one of the most important American laws about the internet: Section 230 of the Communications Decency Act of 1996. Chu invokes Reagan, asking President Obama to "tear down this shield." He should have looked elsewhere in Reagan's oeuvre: "facts are stubborn things."

The core of Section 230 is simple: it says that a computer service provider can't be treated as the publisher or speaker of information provided by someone else. When you go on Facebook and say your neighbor strangles squirrels, your neighbor can sue you (assuming it's false) but not Facebook. I'm responsible for what I write on Popehat, but not for what you pack of gibbering malcontents puke up onto the comments. This doesn't protect sites that host stolen intellectual property — the Digital Millennium Copyright Act covers that. But it means that Facebook, and Twitter, and anyone who runs a blog or a forum or a site with comments, can't be sued over what visitors say there. The Electronic Frontier Foundation does not exaggerate when it calls Section 230 the most important law protecting internet speech.

Chu objects to this state of affairs because it makes it difficult to shut down speech he doesn't like. Some of the stuff he doesn't like — SWATTing, true threats, and genuine harassment — would be shunned by any decent person, and the perpetrators ought to face consequences. But Chu isn't focused on them facing consequences directly. He wants to be able to punish any site on which they post. He wants people to be able to sue Facebook, or Twitter, or any web site on the internet based on what visitors post there. Moreover, if you read his angry rant you may conclude, as I did, that he opposes more than just unprotected speech.

Chu airily waves away concerns that ditching Section 230 will make censorship easier. We have just the institution to sort the good claims from the bad, he says: lawyers and courts.

We have, here in the United States, a system by which wronged parties can seek redress from those who wronged them, and those who willfully enabled that wrong, without proactive control by government bureaucrats. It’s one that even ardent libertarians imagine as being part of how their ideal “small government” would work. And it’s a highly American tradition: one that’s been identified as central to American culture since the days of Alexis de Tocqueville.

I’m talking, of course, about lawsuits. Civil litigation. Bringing in the lawyers.

Yes, by all means, bring on the lawyers. Speaking as one of them — in fact, one who handles the sort of litigation at issue here — let me explain why this is stick-your-hand-in-the-blender naive.

The court system is broken, perhaps irretrievably so. Justice may not depend entirely on how much money you have, but that is probably the most powerful factor. A lawsuit — even a frivolous one — can be utterly financially ruinous, not to mention terrifying, stressful, and health-threatening. What do I mean by financially ruinous? I mean if you are lucky as you can possibly be and hire a good lawyer who gets the suit dismissed permanently immediately, it will cost many thousands, possibly tens of thousands. If you're stuck in the suit, count on tens or hundreds of thousands.

The suggestion that this system will ease the chaos that would result from the loss of Section 230 is nothing short of lunacy.

Let's take a look at some of the stories Popehat has covered so you can see how Arthur Chu's proposal would have changed the result. While you read these stories, evaluate Chu's central thesis — that what he is doing will protect the weak, the abused.

Angry comic book artist Randy Queen could sue the site Escher Girls because commenters there said things he didn't like about his improbably-breasted comic girls.

Angry lawyer Carl David Cedar could sue Scott Greenfield for comments on Scott's blog making fun of him.

The infamous Prenda Law could sue Reddit, TechDirt, Twitter, Facebook, anyplace that held the flood of critical comments about its conduct.

The infamous Charles Carreon could sue every site on the internet on which commenters criticized them — which is, effectively, all of them.

Ol' seemed-crazy-at-the-time-but-in-2015-terms-almost-normal Jack Thompson could have pursued his claims against Facebook for people making fun of him there.

The creepy AIDS denialist could have sued not just the guy exposing him as a fraud, but the webhost the blog used.

And there are so many more. Arthur Chu angrily and oddly tries to portray Section 230 as protecting bigoted white men at the expense of women and minorities, but that's nonsense. Section 230 protects every one of us with a blog or web site directly. It also protects everyone who uses the internet indirectly, because it makes user-input websites feasible.

Section 230 doesn't keep sites from being sued for visitor comment ever. There are still frivolous suits ignoring the law. What Section 230 does is deter most baseless lawsuits against the site, and offer a quick-and-painless-as-possible way out of the those frivolous lawsuits that get filed. With Section 230, if someone sues you for visitor comments, you're funding a motion to dismiss. Without it, you're funding an entire lawsuit defense.

How would getting rid of Section 230 impact the internet? Let's consider:

1. Every single web site out there would have to monitor every single visitor comment or forum post or Tweet or Facebook update — or face liability if the item is actionable. Unless you're running a blog that gets a couple of comments per day, it's impossible to do that, practically. Also, the site doesn't have the knowledge to evaluate whether the statement is actionable. If I post "Joe Blow ran over my cat" on your blog, do you need to investigate before you approve the comment and publish it? Also, are you a lawyer? How are you going to evaluate what visitor comments are potentially actionable? If you're a millionaire you could hire lawyers to do it, but that's an expensive hobby. Hope you're up to speed on the distinction between fact and opinion, parody and defamation, criticism and harassment, and so forth. Maybe the best thing would be never to approve a comment that could be offensive to anyone ever. Good thing modern Americans have such thick skins!

2. Sites will take down visitor comment when someone demands it, because it's too expensive not to. Result: it will become easy to get any content mentioning you, or your actions, or your business taken down. Yelp? Dead as a doornail. Any site allowing users to say anything remotely critical about identifiable people? Unusable. Would Arthur Chu like to call out particular named harassers and talk about them? He's going to need to spraypaint it on a big rock, because at the first complaint his platforms are going to take it down.

3. Arthur Chu seems to think that removing Section 230 will help end online harassment, because forums and sites and blogs will take down nasty things said about people he supports. Maybe. But does Arthur think that harassers won't just as quickly use this new tool he's kindly given them? Does Arthur have a blog? If he does, folks can use anonymous proxies to post mean and nasty criticism on that blog against, say, me — and then I can rush in and sue Arthur. "But I didn't post it! It wasn't up that long! How could I know it was false? It's not really actionable harassment, is it?" Great arguments Arthur. You've got a real shot with those at the summary judgment hearing 18 months and $150,000 from now. Do you really think, Arthur, that the scumbags who threaten and harass and abuse and SWATT people will scruple for a moment about abusing your new less restrictive legal system to harass women and minorities for their online expression? Then you're a damned fool.

What's the result? Web platforms that take down content the minute anyone demands it. The death of any platforms discussing inherently controversial and anger-provoking things. And do you think people abuse complaint systems to shut up their enemies now? Just you wait.

And the flood of lawsuits! Oh, the lawsuits. See, lawsuits are about leveraging the expense and brokenness of the system to shake money out of people. Even if you figure out who HurrHurrFeminitzSuck on Twitter is, he's probably a dude living out of a storage locker. No money to be gained suing him, especially if his comment is close to the line between defamation and non-defamation. But if you can sue Twitter, too, when he talks? Deep pockets ahoy. Now it makes sense to sue, because even if you have a shitty case on the merits, Twitter may settle for a few thousand bucks to avoid the cost of protracted litigation. There are lots of idle lawyers out there, friend. Do you have a house? If so, you better not have comments on your blog.

Should threats and harassment and abuse be addressed? Absolutely. Convince private companies like Twitter and Facebook to offer better tools, and to expel bad actors. Vote with your feet from one platform to others that handle abuse better. Work together to track and whenever possible stomp the bad actors.

But eliminate Section 230 because you think the legal system is made of rainbows and children's laughter? Ridiculous.

Internet harassment and free speech are serious issues, but Arthur Chu is not a serious person.

In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses

Last week Adam ably covered the Big Bad News for our old customer-threatening lawyer-suing pink-paste-purveyor Roca Lab: the Federal Trade Commission has sued it for unfair trade practices in violation of the FTC Act.

Most of the FTC's complaint is routine and can be summarized as "Roca Labs sells crap and lies about it." One part, though, seems novel: the attack on Roca's habit of using non-disparagement clauses to threaten customers who give it bad reviews. The FTC's third claim directly addresses that:

64. As described in paragraphs 12-42 and 44-52, in numerous instances, Defendants have used in the sale of their products, and purported to bind purchasers to, contractual provisions that prohibit purchasers from speaking or publishing truthful or nondefamatory negative comments or reviews about the Defendants, their products, or their employees.

65. Defendants’ practices as described in paragraph 64 have caused or are likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and that is not outweighed by countervailing benefits to consumers or competition.

66. Defendants’ practices as described in paragraph 64 therefore constitute unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n).

This sounded novel to me, so I reached out to the FTC for comment. On Monday, one of the FTC attorneys on the case confirmed "[t]his is the FTC’s first case alleging that a seller’s use of non-disparagement provisions is unfair under Section 5 of the FTC Act." The FTC's press release on the case also mentions that theory.

The FTC's aggressive move reflects continuing nationwide pushback against companies that use nondisparagement clauses as a method of deterring negative consumer feedback. California recently banned such clauses in consumer contracts, and Congress considered, but as convention requires did nothing about, a nationwide ban.

Why the interest? Probably because of the Streisand Effect. Roca Labs isn't the only company that's made headlines with splashy and foolish non-disparagement bullying against customers. Internet bauble-seller KlearGear flamed out in 2015, and the bumptious MedExpress hit the pavement hard and wound up paying attorney fees. Even obscure small businesses have found themselves thoroughly media-stomped when they've tried to invoke such non-disparagement clauses.

A non-disparagement clause in a consumer contract reflects a business you can't trust. But if you've signed one unknowingly, now you have more leverage — if you're threatened, the FTC's suit against Roca suggests that the FTC may view the enforcement of such clauses (at least in extreme cases) as an unfair business practice.

Meanwhile, Roca Labs has entered a stipulated temporary restraining order with the FTC. This stage — preliminary relief — is often where the FTC kills your company dead by convincing a federal judge to issue an order freezing all operations and assets. By stipulating, Roca Labs' attorneys may have been able to negotiate the terms of the order to be a little less onerous. But the order is still a grave development for Roca. It prohibits Roca Labs from making many of their core marketing allegations about their product, prohibits them from invoking their non-disparagement clauses or threatening customers who complain about the product, freezes all corporate assets except for use in normal business expenses, gives them 10 days to provide an accounting of assets, and allows the FTC to take expedited depositions about their products and assets. The order permits Roca Labs to continue to pursue its previously-filed frivolous defamation lawsuits, but with this FTC case those suits have become unwinnable. This is a devastating order.

Revisiting The UN Broadband Commission's "Cyberviolence" Report

So last week I talked about the UN Broadband Commission's "Cyber Violence Against Women And Girls" Report. After looking at some of their sources, and after some more thought, I think I was too uncritical of it. So, I'd like to make a few more observations about why it's troubling to me as a free speech advocate. After that, I'll briefly address why I didn't do better in the first place.

The UN As A Vehicle For Human Rights Abuse

In my first post I already explained why I think we must carefully scrutinize any UN-promoted restriction on speech: the UN has a very mixed record on speech and is heavily influenced by forces that promote a "balance of interests" approach or even a "no blasphemous speech" approach.

I should have emphasized that it's worse than that. The UN and other multinational organizations are increasingly plagued by authoritarian regimes trying to set up ostensibly neutral rules that would allow them to suppress dissent. China, Russia, and Saudi Arabia recently pushed for a UN agency to have more authority over the internet, and in turn cede that control to member states. This would make it much easier for totalitarian regimes to stop online dissent and find dissenters. Also, I did not emphasize clearly enough that the global experience with blasphemy law shows that it is disproportionately used against ethnic and religious minorities in countries with authoritarian governments, and should be seen less as a sincere effort to protect the good name of Mohammed and more as a way to increase state power over those minorities.

In short, when it comes to potential speech restrictions, working with the UN carries substantial risk that the rules you propose will be used abusively by the strong against the weak, and by totalitarian governments against dissenters. If you find that improbable, consider what use, say, Saudia Arabia could make of a very flexible international norm against online "harassment," given their brutal enforcement of narrow sexual norms.

Wait, LYNDON LaRouche? Lyndon LAROUCHE?

In my first post I noted and expressed concern about the report's odd assertion about the relationship between video game and movie violence and real world violence:

There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.

But I didn't read the footnote and look at what they cited for that proposition. Always read the footnotes! The footnote leads us to this monstrosity, a mish-mash of every 1990s trope about how movies and games are turning our kids into killers, combined with 1980s tropes about Dungeons & Dragons, not to mention tropes about psychiatric treatment:

It may well be that the children on Ritalin, on Prozac, Luvox, and other psychiatric drugs, are walking human time bombs.

This is a real thing, in the article, which is cited as support for that "killing zombies" remark in the UN report:

In a press release Feb. 1, 2000, Midway Games reported the “top ten in killer games,” that is, the leading U.S. video-game sofware companies, as ranked in order of their unit sales:
1. Nintendo of America, Inc.: Manufactures Pokémon, Game-Boys, and equipment for satanic video games.

2. Electronic Arts, Inc.: Produces Road Rash, which features a hit and run, criminal assault on police.

3. Sony Computer Entertainment: Equipment for satanic video games. Was a defendant in the lawsuit on behalf of the three girls killed by video game addict Michael Carneal, the 14-year-old shooter in Paducah, Kentucky.

4. Midway Home Entertainment: Mortal Kombat, Doom, Quake.

5. THQ, Inc.: Summoners, which deals with evil sorcerers, satanic monsters.

6. Acclaim Entertainment: Hard Core Wrestling (such as nails in head, strangulation), Hard Core Revolution, and Real F’n Wrestling.

7. 989 Studios (Sony): Produces Everquest. (In this, followers of the god Cazic-Thule inflict “pain, misery, violence, torture, living sacrifice.”

8. Activision, Inc.: Soldier of Fortune (assassination, race war).

9. Namco Ltd.: Soul Calibur. In this, “The Evil Seed is loose, threatens to swallow souls in its chilling wake.”

10. Hasbro Interactive: Official U.S. distributor of Pokémon (abbreviation for “Pocket Monsters”), the killing game designed for toddlers beginning at 2 and 3 years old; Dungeons and Dragons, the medieval satanic and magic fantasy game; Risk II, a “ruthless quest for world domination". One of the Hasbro Board members is Paul Wolfowitz, the co-head of George W. Bush’s team of foreign policy advisors.

The source is written by Michele Steinberg, a former fraud codefendant of Lyndon LaRouche, whose obsession with the just-a-coincidence-they're-Jewish ""Wolfowitz cabal" infects even her discussion of video games.

The report is full of other footnote foolishness as well (like citing a file on somebody's hard drive as a source). But this citation . . . well. As some advocates have criticized how women are treated in video games and online, they've faced claims that they aren't just hostile to bad behavior, they're actually hostile to the whole hobby of gaming and to its entire culture. It's hard to imagine how the UN Broadband Commission could have done a better job making that narrative more credible. Steinberg's article is a shotgun blast of crazy discredited nonsense and culture-nannying dressed (utterly unconvincingly) as science. I will spare you the parade of links showing (1) how violent crime trended down strongly while movies got more violent and video games got more everywhere, (2) how schools are safer than they have been in years, and (3) how multiple studies disclaim a connection between movie or game violence and real-world violence.

This is the equivalent of submitting a serious proposal to Congress advocating for changes in the federal budget and, for the proposition that the NASA budged should be reduced, linking to sites that claim that the moon landing was faked.

One bad citation wouldn't normally destroy the credibility of an entire report. If any one can, this one does. It's used to support a drop-in that violent movies and video games are something the UN might want to look at. It is so freakishly inappropriate that I can only imagine four scenarios: (1) there are no sensible people involved in the preparation and approval of the report, (2) any sensible people involved with the report did not read the report any more carefully than I did, (3) the people behind the report believe this Jack Thompson/Tipper Gore/Jack Chick malarkey, or (4) the people behind the report don't particularly care about the reliability of the sources for their pronouncements. Whichever one is true, I wish I could take a mulligan on calling it a "thoughtful approach to a serious problem." But I did what I did.

Expansion of the Meaning of Words

In my prior post I noted that the report had some strong rhetoric, but didn't spent much time questioning it. As Scott Greenfield pointed out I didn't ask how the Commission was proposing to define "cyber violence." I didn't ask that because it seemed like a pointless project; absent some specific new law or policy to which the definition would apply, it's a theoretical exercise.

But then I remembered that I've groused before about how our rhetorical approach to categorizing speech can have long-term effects on how we think about whether it should be permitted and even on how we treat it legally.

Seen from that perspective — that the report is not offering mere hot air, but proposed norms — it's considerably more troubling than I suggested.

Here's how the report at page 6 defines cyber violence against women and girls, or Cyber-VAWG:

Cyber VAWG includes hate speech (publishing a blasphemous libel), hacking (intercepting private communications), identity theft, online stalking (criminal harassment) and uttering threats. It can entail convincing a target to end their lives (counselling suicide or advocating genocide). The Internet also facilitates other forms of violence against girls and women including trafficking and sex trade. Not only does commercialized sex on the Internet drive the demand for the sex industry overall, it also allows traffickers to use the legal aspects of commercial sex on the Internet as a cover for illegal activities. Some of the main uses of the Internet by traffickers include: advertising sex, soliciting victims on social media, exchanging money through online money transfer services, and organizing many of the logistical operations involved in transporting victims.

Let's take these one at a time.

"Cyber VAWG includes hate speech (publishing a blasphemous libel)." This is rather incoherent. Does "hate speech" refer to hateful speech about women as a class of humans? It's not clear — and in America, the only "hate speech" against women that would fall outside the protections of the First Amendment would be speech falling into traditional exceptions: true threats, incitement to imminent serious harm, and so forth. What's "blasphemous libel?" Well if anyone would know, it would be the Canadians, but it seems even they don't.

"Identity theft:" well, sure, identity theft is illegal, and can be used to harass. I'm not sure that it's more a concern for women than for others, even online. And I'd want to point out that a satirical account in someone else's name, used to mock them, is protected speech, not "identity theft."

"Online stalking (criminal harassment):" Yes, both harassment and stalking can be criminal. Under U.S. law, at least, it requires proof of repeated unwelcome contact with intent to put the target in fear.

"Uttering threats." Yes, true threats are illegal. That means threats that a reasonable person would take as a serious statement of intent to do harm.2

"It can entail convincing a target to end their lives (counselling suicide or advocating genocide)." Well, trying to convince someone to kill themselves is horrific and can be a crime outside the First Amendment. Talking about genocide is something completely unrelated, and under U.S. law is only a crime if it involves a true threat or incitement to imminent lawless action.

"[Sex trafficking discussion]" Well, sex trafficking certainly can involve terrible abuse of girls and women. But the assertion that criminalizing prostitution protects women generally is, and should be, a subject of vigorous debate. Also, note how the passage about sex work treats money transfer and advertising as part of violence against women.

Why would you call something "violence," when it's not violent? Usually it's to co-opt the legal and social norms associated with violence. It's like when you re-define "terrorism" so broadly that you can use the resources and power of the anti-terrorism fight to, say, police DVD piracy.

I'm fine with improving our ability to detect, stop, and punish true threats, which I think are legitimately termed violence. Harassment and stalking, given a principled definition, are at least violence-adjacent. I'm fine with problems like identity theft being treated seriously. But — here, even before specific laws have been proposed — I'm skeptical about and hostile to the expansion of the word "violence" in an effort to dramatically increase anyone's police power, let alone the UN's.

Some of the rhetoric offered by Anita Sarkeesian in support of the report suggests that is the aim of at least some supporters:

Through her work with Feminist Frequency as the star of a video series critiquing depictions of women in the media, including video games, Sarkeesian also found herself caught up in the GamerGate firestorm. "I have been a target for three years non-stop," she told those in attendance, "of egregious online harassment in all levels."

She defined this as not just the violence that the group has formed to combat, but also the "day-to-day grind of ‘You're a liar,' ‘You suck' … making all of these hate videos on a regular basis to attack us and the mobs that come from those hate videos."

Some of the abuse Sarkeesian has described constitutes unlawful true threats and actual harassment and stalking. Not all of it does. Calling her a liar or saying she sucks is protected speech, unless it's directed in repeated unwelcome communications directly to her (like phone calls and emails). Videos saying that she sucks are also protected by the First Amendment, unless they contain true threats or incitement to imminent lawless action. This is not the first time she has conflated genuine threats of violence with criticism (as have some of her detractors, in the other direction).

I was right in saying that we need to scrutinize any specific proposed laws or policies that arise from this report. But I was wrong to downplay the rhetoric as mere rhetoric, and to say it was premature to criticize it. On a more serious look, the report's rhetoric suggests an effort to use the language of violence to cover non-violent and protected conduct. That is of particular concern since it is directed at the UN.

Those are not the only things wrong with the report, but those are the ones that strike me most forcefully. In discussing the Commission's references to foreign concepts of free speech, its invocation of zero tolerance, its suggestion that companies would be required to abide by particular codes, about how industry codes can be used against the people they are supposed to help, and by noting that the report relies on questionable sources about "revenge porn" law, I was right.

It's Easy To Get It Wrong.

I screwed up. I didn't blow a closing argument or put the wrong pacemaker in someone or crash a car, but I offered my thoughts without exercising due care. The easy reason was that I rushed, because I was busy. The harder reason is that some of my attitudes colored my approach.

I expected that the report would not be read, that its contents would be overstated and distorted, and that it would be treated as an open and explicit call for censorship because of the people involved with it. I wasn't wrong to think that. But I was wrong to let that thought stop me from a more careful examination, and to allow myself to breeze by the implications of the rhetoric while looking for the specific proposals that weren't there. If I had looked at it from a "is this rhetoric bad or not" standpoint, instead of a "imagine the reaction to this" viewpoint, I would have gotten it right.

I'm likely to get things wrong again. I'll do my best to make them right again. And naturally, it would be pointless to write to please any audience.

Edited to add: I was invited to talk about this on CBC radio, with the results here. Be kind; it was 4:30 in the morning.

A Few Comments on the UN Broadband Commission's "Cyber Violence Against Women And Girls" Report

Update: Further information suggests I was far too benefit-of-the doubt here, which is what happens when you write fast and when you generally despise some of the people involved. Some of this is still right, but regard the conclusions and characterizations with skepticism. Taking a second look. See, e.g., the fact that they cited this [footnote 118] for the video game discussion I cite below. When I'm wrong I'm wrong. Will revisit.

The United Nations Broadband Commission For Digital Development has released a new report called "Cyber Violence Against Women And Girls: A World-Wide Wake-Up Call." You can find it here.

I have a few comments about it from a free speech advocate's standpoint. I am not going to talk about it from a cultural standpoint. Any post here about gender-based harassment generates bad behavior, as I've long noted. I am aware that there is a political controversy over whether online harassment of women is understated or overstated, whether discussion of such harassment is a feminist plot to steal our precious bodily fluids, and so forth. My view is that online harassment of women is a problem and a legitimate subject of discussion, but I am uninterested in that discussion today. I'm interested in a discussion of the free speech implications of this report. If you are a person who feels that it would be morally wrong not to share your views on those subjects whenever physically possible, and that it would be like unto fascism for even one post not to showcase those views, please go elsewhere to one of the innumerable other venues for that discussion. Thank you.

Any Report From Any UN Body About Speech Warrants Scrutiny

I don't trust the UN on free speech issues. You shouldn't either. In a world where Iran wins a seat on the UN's Commission on the Status of Women, people who care about women's rights should also be skeptical. Pro-censorship forces continually pressure the UN for international laws and norms restricting speech — for instance by demanding laws outlawing blasphemy. Allow me some unabashed American exceptionalism: that's a bad thing. The United States' vigorous approach to protecting free speech and rejecting blasphemy laws is good, and foreign norms that encourage blasphemy laws often used to persecute religious and ethnic minorities are bad.

The UN's response to calls for censorship is mixed. Occasionally sensible officials have recognized the role of censorship (and especially blasphemy laws) in promoting oppression of the weak by the strong. But just as often the UN produces troubling rhetoric like this from the Secretary-General:

"Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose," Ban told a news conference.

"When some people use this freedom of expression to provoke or humiliate some others' values and beliefs, then this cannot be protected in such a way."

The UN also has a pattern of avoiding discussions of censorship that might offend member states and uttering windy statements about how freedom of expression must yield to various sensibilities.

So: I submit that a report by the UN on an issue touching upon freedom of expression deserves close scrutiny. The report does not require special scrutiny because it is about harassment, or the treatment of women: it requires scrutiny primarily because of its source.

Scrutiny Means Actual Scrutiny, Please

But "scrutiny" means actually reading the report and not relying on shrill and partisan summaries and characterizations.

I read the report with an eye towards evaluating what specific policies the Commission is advocating. Taken from that perspective, the report is more respectful of freedom of expression, and less aggressive about potentially censorious policies, than I feared.

Like any UN report — strike that, any report ever — this report contains a lot of nonspecific rhetoric. It also contains very troubling discussions of violence and threats against women, both online and off. They are worth consideration apart from the discussion of free speech issues.

General Concerns About How The Commission Views Free Speech

The report contains rhetorical references to the potential conflict between free speech and policing online conduct:

In the context of cybercrime, stakeholders, including the UN system have noted the need to balance rights. Groups such as APC have cautioned that in the name of spurious measures to “protect” women online we need to be weary of censorship, and that efforts should strive to “balance rights to privacy, freedom of expression and freedom from violence and harassment for all individuals in constitutional, civil and criminal law.”

That's a general value statement, not a policy. But it implies a non-American understanding of rights. It invokes Censorship Trope Five: balancing speech and other rights. Other countries take an occasionally ad-hoc "balancing" approach to speech — that in any particular circumstance whether speech is protected depends on whether the right to speak is outweighed by some other interest. The American approach recognizes categories of unprotected speech (like true threats) but forbids the government from "balancing" speech outside those categories. So: unsurprisingly, the Commission is taking an international approach to speech rather than the American one I support.

Concerns About the Broadband Commission's Specific Policies

I suspect some people will characterize the report as advocating censorship. That's a misleading characterization. There are UN reports that openly advocate for abandoning American-style free speech norms and "balancing" free expression with various rights. This isn't such a report; it's not advocating for broad speech codes. The report spends most of its time focusing on progress within existing frameworks. But it does have some proposals that trouble me as a free speech advocate.

The report proposes a "multi-level approach" to online threats against women, made up of "sensitization" (that is, changing cultural norms about what conduct is socially acceptable), "safeguards" (working with industry to develop methods of protecting people from online threats) and "sanctions and compliance" — where the action is.

Here's the parts that are worrying.

First, rhetorically, the report advocates a "zero tolerance for violence against women" mantra. I understand and share the anti-violence sentiment, but experience teaches that framing a response to a problem as "zero tolerance" leads to terrible results. That's not a problem with "women's issues," it's a problem with any perceived social ill. Telling people to take a "zero tolerance" approach effectively tells them to suspend critical judgment when addressing a problem. It doesn't lead to treating a problem seriously; it leads to treating a problem anxiously. When applied to something as complicated as the internet, that's potentially disastrous.

Second, the report advocates building relationships with private companies and helping them to develop methods to deter, stop, and report online threats. That's fine; private companies are private and are not bound by the First Amendment. Twitter is no more bound to tolerate online douchebaggery than Nordstrom is to let me shop naked. But the report suggests that the Commission (as one would expect) doesn't really grok private industry. It seems to envision a partnership of mutual values, as opposed to a partnership that persuades private industry that it is in their economic interest to prevent online threats and harassment. More alarmingly, the report seems to advocate government regulations requiring online platforms to take particular approaches to harassment prevention. The devil there could be in the details: regulations could easily amount to content-based censorship.

Third, I believe the report does not sufficiently consider how the industry measures it advocates can be used to suppress speech, including (perhaps even especially) women's speech. The call for more transparency in how online platforms implement anti-harassment programs is sensible. But nobody ever build an automatic system that internet users can't manipulate. Anti-harassment protocols will always be used disingenuously. That doesn't mean industry shouldn't try; it means there should be more critical thinking about whether they will help or hurt. I'm particularly concerned about pushing industry to unmask anonymous speakers more easily, a terrible idea that I think will more promote harassment than prevent it. The report refers approvingly to some such measures without, I think, adequate attention to their risks to free expression and to safety.

Fourth, the report makes gratuitous and controversial claims about the dangerousness of expression. Specifically, it is receptive (credulously, I submit) to the notion that there's a causal relationship between video game and movie violence and real-world violence:

Core roots of mainstreaming violence. There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the
general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.

I'm not saying that proposition has no evidence supporting it, but at a minimum the evidence is controversial and subject to question. It's troubling that a UN report would present such a one-sided and frankly alarmist view of an issue so directly connected to speech.

Fifth, in reviewing various responses to online harassment, the report is insufficiently focused on the distinction between plausible laws and implausible laws, noting them both approvingly. But all laws are not alike. For instance, the report approvingly cites "revenge porn" laws. But some such laws are so badly drafted that their drafters have conceded defeat. In citing authorities, the report does not attempt to distinguish between advocates of revenge porn laws who attempt to frame laws that will pass constitutional muster and advocates who are effectively seeking to change legal and constitutional norms to accommodate their revenge porn laws. The distinction is meaningful, and the report's uncritical approach to content-based censorship proposals concerns me. Even when it appears to be rhetorical rather than substantive (like the introduction's puzzling reference to "blasphemous libel" as a form of violence against women), it's a danger sign.

Be Skeptical

The report is not the orgy of censorship that ideological enemies will claim. It's a thoughtful approach to a serious problem. But careful examination of any resulting policies is warranted.

Postscript: Scott Greenfield not unreasonably asks how the Commission defines violence or threats against women. I don't think it seriously attempts to do so. It lists some undefined subcategories of conduct that can be violence. This would be more of a concern to me if the report proposed specific laws against undefined violence. Once the Commission attempts a definition, or offers a specific policy that requires a definition, I'll critique it.

Let's Applaud Wesleyan's Student Censors For Honesty

Earlier this week I covered a tumult at Wesleyan, where students claimed to be silenced by a student newspaper op-ed they didn't like.

The student op-ed criticized the Black Lives Matter movement in a manner that strikes me as more bootlicking than racist. This yielded a cringing and cringeworthy apology from the Wesleyan Argus' staff (bad) and a vocal commitment to free speech by Wesleyan's President (good).

Some Wesleyan students have responded with a petition and list of demands, which 171 students and alumni have signed as I write this. Here's a hard copy in case it gets disappeared. Edited to add: looks like critics are editing it to satirize it, so look at the hard copy instead for an accurate view of what it looked like.

I like the petition. I like it because the students aren't pretending to be anything but censorious: it's honest.

The students signing the petition agree to "boycott" the Argus, "recognizing that the paper has historically failed to be an inclusive representation of the voices of the student body." So far, this is a call for responsive expression, which is fine. From there it gets scary. "Most specifically, it neglects to provide a safe space for the voices of students of color and we are doubtful that it will in the future." In context, it appears that "safe space for the voices of students of color" means "a newspaper that won't print anything that this particular group of students of color finds objectionable," an aim worthy only of our open scorn.

"This boycott includes recycling the Argus," the petition continues. What does "recycling" mean? It means taking and throwing away copies of a free student newspaper so that others can't read content you don't like, and it's a nationwide problem, as the Student Press Law Center documents. People who respond to student paper content they don't like by trashing the paper to suppress it are thug trash, and it's nice of them to sign a self-identifying petition.

The petition goes on to demand that Wesleyan defund the Argus until their demands are met. Those demands include "Monthly Report on allocation of funds and leadership structure" (that is, more intensive control of a newspaper by student government), "Required-once a semester- Social Justice/Diversity training for all publications (Via Elisa Cardona/SALD office)" (meaning mandatory ideological conformity training on publications via school administration), and "Open spaces dedicated for marginalized groups/voices if no submissions: BLANK that states: 'for your voice” on the front page" (meaning, quotas for expression by particular predefined groups, somewhat like the thankfully-abandoned and Orwellian-named Fairness Doctrine).

Bear this in mind: Black Lives Matter is an explicitly political movement with explicitly political goals. Many of those goals — like questioning and monitoring disproportionate police violence against young black men — are worthy. But the notion that there is only one correct way to think about a political movement is monstrous and un-American. Wesleyan is a private school; they can abandon basic notions of free expression and turn their school into a training ground for ideological conformity if they want to. But isn't it thoughtful of these students and alumni to say exactly what they want, without equivocation? They've thoughtfully provided a list of people never to hire.

"Your Speech Silences Me:" A Trope The Kids Learned From Us

As befits an old fart, I spend a lot of time ranting about how young people today are just terrible, particularly about freedom of expression. If I avoid being a cloud-shouting caricature, it's because I admit this is my generation's fault: young people are just adopting the awful values that we taught them.

Today's example is the notion that speech silences us.

Yesterday I mentioned a free speech tumult at Wesleyan University, where a student op-ed criticizing the Black Lives Matter movement led to controversy. Scott Greenfield wrote about the dispute as well, and we both picked on one particular student for saying that the op-ed ought to be censored because it "silenced" speech:

The biggest problem with treating this as a freedom of speech issue is that this speech actively silences other speech.

This proposition — "this isn't free speech, it's silencing speech" — is simply an iteration of Trope Six: "this isn't free speech, it's [other invented category]."

It's also something the student could have picked up from us — and by "us" I mean the community of adults who talk about politics and free speech. The student has applied the lesson to complain about "conservative speech," but could have picked it up from listening to people complain about "liberal speech." Our student has listed to people saying "you called me a racist and that stifles my free speech" and simply reworked it a bit to "you spoke like a racist and that stifles my free speech."

This shouldn't be a surprise. For years we've been indulging in the "Speech Is Tyranny!" and "criticism is censorship" tropes. We complain that "you can't say [x] any more," where [X] is some conservative viewpoint. What we mean is that we cannot say [x] without being criticized, perhaps in very harsh terms. We call it things like "systematic silencing":

Powers revealed that in "The Silencing," she focuses on the attack on free speech from the media and on college campuses.

"It's a systematic silencing that is going on," Powers said. "And they use the same tactics. I also am not talking about disagreement. I'm not talking about people being civil. I'm talking about these are people who will not have a debate. They will attack you: 'You are racist. You are misogynist.' It's never about what the actual issue is."

"And it's really impinging people's ability to debate issues, because there is no debate. They tell you there is no debate because you're a racist."

So. How can we really blame our angry Wesleyan student for using a rhetorical trope we have taught him?

I look forward to the protestations that's different. Surely not every cry "you're silencing me" is the same. But just as we should use critical thinking to evaluate this student's claim that speech silences him, shouldn't we also think critically about our own claims to be silenced by criticism and what we term "call-out culture"?

I may not buy the argument that the Black Lives Matter critique silences anyone (though I do find it nauseatingly bootlicking). But neither do I buy that it silences the author to tell him that it's ignorant, or racist. Rejecting the former but buying the latter seems to depend on a magical view of speech: that most speech encourages more speech except for a set of magically debilitating words (like "racist" and "sexist" and so forth) that destroy it. That purported dichotomy deserves scrutiny.

Imagine some examples. If I tell a gay person that they are outside of God's love and going to Hell unless they repent, and they call me a bigot, have I encouraged speech and they silenced it? If you're an HBD fan and tell black people that they are inherently intellectually inferior and they call you racist, have you encouraged speech and they've suppressed it?

To put it rudely, are we really buying the premise that being a dick encourages speech but calling someone a dick suppresses it?

I find that unpersuasive.