Is there a constitutional case on Trump's Truth Social posts sale?

 I'm talking about Trump selling faster access to his dementia-laced addled comments.

The Intercept and the Freedom of the Press Foundation claim their is, in a new suit. Here's their case: 

The Intercept and the nonprofit Freedom of the Press Foundation alleged that the Truth Social offering runs afoul of the First Amendment's guarantee of equal public access to the president's statements and also violates the Fifth Amendment by granting preferential access for "unreasonable sums." The suit asks a federal court in New York to block the president from posting official government information exclusively on Truth Social.

Let's look at both, starting with the Fifth Amendment angle, because I pulled it up first. We normally think about "Pleading the Fifth," but the amendment has more than that, being kind of a grab-bag in a sense. Here it is; note the end:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

OK.

Is it the second-last clause, the due-process clause, or the private property clause, that's being cited?

If the last clause had reverse wording, the case would be a slam dunk. But it doesn't.

Beyond that, if the last clause is the claim, the litigants shut themselves in the foot, IMO, with the "unreasonable sums" claim. They're essentially saying they WOULD pay, but only if "reasonable."

OK, now the famous First:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The only way I see even a possible shot here is if Trump charges some media more than others for the same expedited speed, or grants that to some outlets for free. 

Otherwise, like lawsuits over cutoffs in Corporation for Public Broadcasting funding (ironic because my story link is from NPR) I see no, NO constitutional angle at play. 

On the First Amendment, cybersecurity law is not media law

I just got done reading a book that sounded interesting, and even was good at the start, but, had a surface-level treatment of background history behind our current level of First Amendment law, and worse, was surface-level in discussion of tweaks, including but not limited to Section 230 related items.

Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation by Jeff Kosseff
My rating: 3 of 5 stars

Good, but not quite great, and ultimately, not quite not quite great, as it slumped at the end. Let's dig in.

The best way to describe Kosseff’s thrust in the first half to two-thirds of this book, is by analogy with the old lawyers’ joke.

(Well, WHICH old lawyers’ joke?)

That’s the one where a person says, of Lawyer X, usually of the famous type, “Boy, they’re a jackass,” but down inside says, “If I ever need a lawyer, I want them.”

That’s the way freedom of speech is, per Kosseff, or one way to think of it: “Boy, I hate THEM getting to spew that, but I want that same level of protection myself.”

First, Kosseff says, after separating truth from legend in Holmes' "crowded theater" (which I already knew) the marketplace of ideas meme is good but not great, is not the only 1A protection, and cannot stand by itself. First, different actors have different size stalls in the marketplace. Second, the “informed citizenry” argument bolsters it. Beyond people vending ideas, people simply needs to see ideas. Re the marketplace, cites Bill Brennan that there needs to be buyers as well as sellers, and thus, restraints on speech are harmful both ways.

Then Kosseff notes the difficulty of establishing “truth.” Things like predictions aren’t simple empirical statements, but they’re more than opinions. Weather forecasts an example. Next, publishers of ideas, unlike makers of products, don’t have an express liability for the ideas they publish. That would kill publishing. Then, notes that what once seems untrue might be true; Kosseff cites the lab leak theory on COVID. Ironic even as Team Biden now faces suit over its attempt to put a thumb on the social media scales, even if that’s not direct censorship.

Re Washigton Gov. Jay Inslee’s bill, 183ff, The Baffler suggests another option vis-à-vis Trump: That either the original 1870s Ku Klux Klan Acts, or a modern equivalent, would disbar him. Just one problem: the KKK Acts, all talk about a “conspiracy” of … “two or more” or similar. Whether these acts are constitutional or not (and Thomas Geoghegan acknowledges they could be ruled unconstitutional) good luck proving a conspiracy of two or more.

The “self help” chapter in part 3? Kind of naïve. And, from here on, the book is kind of "meh." It shows not only a surface-level treatment, but by its lacunae, that Kosseff has particular ideas of what he favors or not. We'll get to the lacunae in a minute. 

First? The idea of retraction statements being a defense against at least punitive damages in defamation cases and that this could be extended to social media? Laughable, on the "extension." What’s to stop them from being pulled down again? And, does FB, Twitter, etc. want to be engaged in locking such posts? If they are, what if the defendant quote tweets to say “I repudiate this.” Fact-checker orgs like PolitiFact as self help? Per earlier chapters by Kosseff, I’ll bet it called the lab-leak theory “mostly false” in the early days of COVID. It’s been wrong plenty of other times, in framing for sure, if not actual facts. And, per other themes of Kosseff, should be called “PolitiOpinion.” Snopes is not always incredibly good either.

The next chapter? Quite timely, given SCOTUS now debating the two NetChoice (lobby arm for social media) vs states lawsuits, and re “jawboning,” the Murthy vs. Missouri scheduled for March. (Rick Hasen, "interestingly," doesn't mention it.) 

That said, re Section 230, I do favor amending it. Indeed, social media companies do act like publishers. Maybe not totally. But, there’s enough that’s analogous that we should carefully amend it. (I oppose starting over with new law; a big old bag of worms would be opened.) The big problem is that it’s not that Facebook, the biggest of all, can’t do more as a publisher. As anybody who’s read about the “content moderation farms” in the Philippines knows, the real issue is that Hucksterman is too damned cheap. Kosseff doesn’t address that. Nor does he engage with media and media law orgs. My link above discusses a piece by Nieman Lab, and to extend the analogy of social media to media, they talk about “monetization” as a “trigger.” In fact, other than his one reference to PolitiFact, there’s no index listings not only for Nieman, but Columbia Journalism Review, Jay Rosen (not that I totally agree with him, but he's a known standard), Dick Teufel formerly of ProPublica, etc. Indeed, per my discussion of his mention of PolitiFact, there as IS NO SUCH THING as one unified Politifact. And, in the point of dropping in that last link, I realized he was going to go down to three stars after all.

As for his suggestion that perhaps things like Net Nanny should be rolled out? Facebook Purity already exists and Hucksterman does everything he can to sabotage it. Next? Kosseff overly romanticizes Mastodon. Related? Bluesky? Started within Twitter. And, Jack Dorsey is good only in comparison with Elon Musk.

Another three-star reviewer talks about much of Kosseff’s solutions as “milquetoast.” I’d have to agree. Finally, it should be noted that he's in cybersecurity law. That's probably a big deal at the Naval Academy; I'm sure that media law is not. 

Finally, Kosseff is wrong, elsewhere, in book-length form, about Section 230. It is NOT "the 26 words that created the internet," but rather, "the 26 words that created the internet as we know it today." That's a big difference, per one reviewer of his book.

Given both these, I think you can take a pass on reading him, folks.

View all my reviews

The anti-First Amendment fascist hell of Marion, Kansas

Eric Meyer, owner and publisher of the Marion County Record, speaks in more detail about last week’s police raid on his newspaper, which included seizure of ALL newspaper computers and other items.

The big new takeaway? Besides the story already printed about restaurateur Kari Newell booting Record staff out of a meeting she was having with Congressman Jake LaTurner, and beyond information provided by an anonymous source to both her and the town’s assistant mayor about a previous DUI that might, indeed, have affected her application for a special event liquor permit?

The paper had been investigating information from anonymous sources about newly hired Police Chief Gideon Cody about him possibly leaving his previous policing position rather than face fines and/or demotion over sexual misconduct issues.

That would, of course, be the same person who led and organized this raid, and who would have assisted in getting the warrant for it, and who might have known that federal law requires a subpoena in such cases — and who now claims the Privacy Protection Act’s subpoena requirement does not apply in criminal cases. Per its Facebook statement, there is a HUGE conflict of interest when the Marion PD sets itself up as judge, jury and executioner on deetermining when an alleged loophole on the Privacy Protection Act exists when its own chief is under investigation.

And, Chief Cody (no hiding behind “police department statement,” since you ARE the police department in a small town) is STILL wrong. The PPA notes that when a newspaper or other First Amendment-protected institution faces a warrant without subpoena it is STILL supposed to be given adequate opportunity to file an affidavit of objection. That CLEARLY did not happen.

This is more than just prior restraint, although that’s part of it. It’s also clearly an illegal, authoritarian attempt to uncover anonymous sources.

As a newspaper editor myself, I hope the Record’s federal lawsuit names individuals, not just the city of Marion.

Florida journalists' group slouches toward Gomorrah AND irrelevance

Emily Bloch and other members of the Florida Pro chapter of the Society of Professional Journalists have hatched a true Bizarro World idea: Trademark the words "fake news" so that Trump can't use them.

First, that's not how trademarks work in general. I can say "Coca Cola" any time I want, as long as it's not monetized commercial speech that infringes on a trademark.

Second, political speech (including non-verbal speech) is recognized as having extra rights in things like this. Since Trump IS president, that would give him more protection yet.

Third, contra her claim that it's "uncertain" that the Patent and Trademark Office will grant this, I can say it's almost CERTAIN it will NOT. Google four words: "Taco Tuesday" and "LeBron James."

Fourth, this clearly violates at least the spirit of the First Amendment. Beyond it being hare-brained, it's unethical and unprofessional. It's a sad state of affairs that she roped an entire chapter of the SPJ into this stupidity.

Ms. Bloch, per her bio, has contributed to Teen Vogue, among other things. This sounds about that level of thought. I mean, the story is posted on Teen Vogue. That's something that calls itself a "magazine," isn't it?

Worse yet, at a time when ever more Americans are willing to fold, spindle and mutilate the First Amendment, and especially among youth, giving them this mental swill as intellectual feeding is more unethical yet IMO.

I Tweeted — two delayed via TweetDeck — on three themes:
1. The general nutteryness
2. The LeBron/Taco Tuesday angle
3. The not understanding trademark law.

Florida SPJ responded ... with Bloch liking the Tweet, which doubled down on what's essentially a clickbait angle.

Thanks for weighing in! As we’ve explained multiple times, across multiple platforms: We wanted to start a conversation and share resources about how to be critical about what is and isn’t news. We’re glad to have done so. Learn more at https://t.co/tEtOlGIzPs

— SPJ Florida (@SPJFla) October 24, 2019

To which I fired back:

As many journos have weighed in on #FakeNews 4 mths/years, you cld have done much better IMO. Re yr website, I start w/ MediaBias FactCheck to examine websites with which I'm unfamiliar, then go from there. W/in media, I don't always trust Politifact et al https://t.co/zGb92JBlC8

— reallyDonaldTrump 🚩🌻 (@AFCC_Esq) October 24, 2019

Beyond clickbait, the one other thing I think of is related to that — it's a membership recruitment tool. I'm sure that at anything below larger-level dailies, individual memberships in groups such as SPJ has continued to drop along with flatlined or dropping salaries.

US media gets craven over RT being named a foreign agent

The Nation, in a good piece by Aaron Mate, has the silence of American media — and American and international human rights groups — over the U.S. government's recent requirement that RT, the former Russia Today, has to register as a foreign agent.

First, it has less than 30K daily viewers. Nielsen doesn't list it among its top 94 cable networks.

Related, whether Russian-related purchases of ads in the U.S., and the minuscule amount spent on them, influenced our election last year or not (pro tip: it didn't), nobody's traced any of those buys to RT.

And yet, this:

RT has found few defenders among the foremost advocates of media freedom and free speech in the United States. The Nation sent queries about RT America’s foreign-agent designation to the leading US civil-liberties and media-freedom groups. Amnesty International, Reporters Without Borders, the Poynter Institute, and Columbia Journalism Review did not respond. Human Rights Watch and the National Coalition Against Censorship declined to comment. The silence by Human Rights Watch and Reporters Without Borders contrasts sharply with their condemning of the ongoing Gulf-state effort to close Al Jazeera. 

There are some exceptions. Michael W. Macleod-Ball, a legal adviser for the American Civil Liberties Union, says the foreign-agent investigation of Russian outlets “highlights the potential for mischief” in having FARA applied unequally, but that not enough is known about the government’s criteria to reach a conclusion.

Pathetic.

But not quite as bad as this:

At a recent Atlantic Council event, columnist and Brookings Fellow James Kirchick advocated “private sector initiatives…to name and shame and isolate RT and push it out of the respectable precincts of society.” For “young up-and-coming 22- and 23-year old journalists in the West,” considering employment at RT, Kirchick explained, “maybe they won’t take that job offer if they know they will never get a job afterwards at any reputable news organization.” On Twitter, a former Daily Show producer has just urged fellow comedians who work at RT’s comedy news show, Redacted Tonight, to stop being “useful idiots,” and instead “get work elsewhere.” 

Horrible.

Meanwhile, Google is reportedly considering banning RT. Other tech companies are looking at similar.

What's also shameful is the bipartisan collusion behind it.

As the action came from the Department of Justice, this arguably is AG Jeff Sessions throwing a bone back to President Donald Trump over Trump's alleged continuing anger over Sessions recusing himself from the alleged Russia collusion investigation, which necessitated the naming of Robert Mueller as special counsel.

For Democrats, this is another way to beat the Putin Did It drums and try to disempower Trump at the same time.

Both political parties, right along with journalists and journalism organizations, are showing their contempt for the First Amendment.

Beyond wingnuts who don't trust "the media," many intelligent left-liberals and leftists don't trust it for other reasons. Like this.

National Newspaper Week: Symbolic of a problem?

I just got done going to the website for National Newspaper Week, which is Oct. 6-12.

First, the cartoons.

Two of them specifically talk about the sports section, which is arguably one of the more problematic spots in hardcopy in daily papers, especially larger ones. There's that massive amount of space demanded for agate for box scores. Then, most papers continue to have a page 2 box that lists sports on TV and radio, something that's not done for science programs, either classical or modern music programs or anything else. And, the biggest dailies, like the Dallas Morning News, have dumped almost all of their high school stuff on paywalled websites now, for that reason, on issue No. 1.

It's also funny in another way, and sad in yet another.

Funny? All the ads that show a newspaper still show the old hardcopy; not a one has a person at a computer, tablet, etc.

Sad? All the ones that have people in them? All white folks.

Nostalgia dies hard. (Of course, a certain newspaper editor in Manchester, Conn., might like those cartoons. No, he didn't mention race, just single moms, but ... )

Especially when the week concludes with Newspaper Carrier Day, as if we're still celebrating kids throwing newspapers out of bags, and collecting the monthly dues later in the month.

The columns and op-eds?

Lamar Alexander? Puhleese. ANY U.S. elected official who has not robustly opposed the Patriot Act, NSA spying, etc., has no fucking business writing a column for this. Even worse, he explicitly mentions the First Amendment in his column.

I am officially disgusted, and appalled that the National Newspaper Association gave him this platform. And, I counted at least halfway to 10, then emailed relevant officials. (And as of yet, have not heard back from them.)

Beyond that, the rest of the op-eds are kind of fun. They do talk about what newspapers can and often do still do write. But, they're sad in another way, namely in the amount of "spinning" they do about financial-related issues.

The suburban Dallas dailies I was at for years didn't promote National Newspaper Week a lot. If we did anything out in Odessa, it was purely ad-driven, so I didn't built any pages for it. I wonder if other politicos have, sadly, been given column space like this before?

I mean, the whole thing is another "sign of the times."

It's not ironic, it's hypocritical in extremis to have cartoons, and maybe other columns, talking about newspapers as watchdogs, and as purveyors of public information, then this.