Climate change and libel

US climate scientist Michael Mann won his longstanding libel suit against right-wing climate deniers on Feb. 8, 2024, with a jury award of $1 million in puntive damages. 

The lawsuit began in 2012, when Mann accused Rand Simberg, a former adjunct scholar at the Competitive Enterprise Institute, and Mark Steyn, a contributor to National Review, of defamation when they alleged that his work was so fraudulent it was like child molestation.     

Scientists see  the verdict “as a warning to those who attack scientists working in controversial fields, including climate science and public health,” according to  Nature magazine.   

The question in libel is whether the defendant knowingly published a falsehood or acted in reckless disregard for the truth.  In testimony,  Simberg and Steyn both insisted that they do not agree with Mann’s climate science, so the question was whether or not they were reckless.

“The trial transported observers back to 2012, the heyday of the blogosphere and an era of rancorous polemics over the existence of global warming, what the psychology researcher and climate misinformation blogger John Cook called “a feral time,” said a New York Times article.

A federal court opinion from 2016  located here: Competitive Enterprise Institute v Mann.   The 2024 decision is not yet on Nexis, SCOTUS blog, or other legal sources. Also see Alito Dissent from denial of cert, 2021.

 

Welcome, Mickey, to Public Domainland

Public domain is a good place, and I think you and Minnie are going to like it there.   You  are  moving into a terrific neighborhood.  There’s Paul Bunyan and Tom Sawyer next door. And across the pond in Britain, you’ll see Alice in Wonderland,  King Arthur and Robin Hood.  Across the English channel from them, you can see the Little Mermaid and Snow White and Hansel and  Gretel.   

So, it’s a small world after all.  

Now I know there was a lot of controversy about you sticking with Disney for an extra 20 years because of  the Sony Bono Copyright Extension Act.  The legal team from Harvard, you know, Eric Eldred and Larry Lessig and those guys, tried to appeal the act. They told the courts that they were worried the “extension” would be extended again, which would be unconstitutional. But in 2003 the Supreme Court said that was the business of Congress, and gave the  issue a judicial pass ( in Eldred v Ashcroft). 

But now its 2024,  and as it turns out, you didn’t break the Constitution, Mickey. It’s a pretty strong contract, and some of us were probably too worried. Twenty years went by, and now you and Minnie are packing your bags and going off to live among your old friends.

It’s not really a retirement home, you’ll be glad to hear. There are all kinds of new ideas popping up around public domain figures like yourself. Yes, its true, not all of them are family-friendly, but that’s life in a free country.  The First Amendment protects the good, the bad and the ugly. Yes, I agree, there’s a little too much of those latter categories.

But you’ll always be one of the good guys, Mickey, so don’t let it get you down.  The arc of history is long, but it always arrives at justice in the end.

Here’s hoping you and Minnie enjoy your golden years.

Watch List: Supreme Court comm cases

These four communications cases have been granted cert. for the current Supreme Court term. Cases will be heard through the fall and winter, with opinions published  between April and June.

Moody v Netchoice is a pending Supreme Court case involving state  government attempts to stop censorship by social media companies.  At issue is (1) Whether the First Amendment prohibits a state (specifically Florida and Texas) from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so; and (2) whether the First Amendment prohibits a state from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech.  The state laws were blocked in a lower court but revived in a federal appeals court, on Sept. 16, 2022. The Supreme Court granted cert. in May 2023 for the cases.

An early take on how Moody might be decided shows up in a federal case,   Republican National Committee v Google, which was dismissed in favor of Google on Aug. 24, 2023.  The RNC alleged that Google had been intentionally misdirecting its emails to Gmail users’ spam folders at the end of each month “to secretly suppress the political speech and income of one major political party.”  The court said the RNC had not proven bad faith and  that, in any event, that would have been protected by section 230 of the CDA.

O’Connor-Ratcliff v. Garnier. When a public official blocks someone from their social media personal, unofficial social media account, is that an act of censorship prohibited by the First Amendment?

Vidal v. Elster,   Does the the refusal to register a trademark under 15 U.S.C. § 1052(c) violates the free speech clause of the First Amendment when the mark contains criticism of a government official or public figure.

Murthy v. Missouri  Can the federal government attempt to influence private social media companies’ content-moderation decisions? Is that a state action that violates First Amendment rights? The state of Missouri claims that US Surgeon General Murthy’s attempts to influence social media about “anti-vax”  rhetoric is a violation.

MORE: See the SCOTUS Blog 

Murthy v Missouri: Court wont block talks

The Supreme Court stopped a temporary injunction to block the Biden administration’s ongoing conversations about disinformation with social media companies on Oct. 20, 2023.

This leaves federal agencies such as the Centers for Disease Control free to attempt to influence  social media companies in order to  (as the administration says) “mitigate the hazards of online misinformation” by flagging content that violated the social media platforms’ own policies.

The states of Missouri and Louisiana have contended in Murthy v Missouri (aka Missouri v Biden) that the government “coerced, threatened, and pressured social-media platforms to censor” them, in violation of the First Amendment.  US Surgeon General Vivek Murthy is named as a defendant in the suit.  Evidence of this pressure campaign  emerged when the Twitter Files were released after Elon Musk purchased Twitter and took over company management on Oct. 27, 2022.  CNN published an article about the Twitter Files Dec. 2, 2022.

See SCOTUS Blog, Justices Allow Continued Communication
Also: FIRE Statement on Murthy v Missouri being granted cert

Recent Issues & Cases

SUPREME COURT

Several important decisions on free speech issues were handed down by the Supreme Court in the session ending June 30, 2023.   Linda Greenhouse of the New York Times notes that this session caps the triumph of what would have been an unimaginably right-wing agenda when John Roberts became Chief Justice in 2005.

Of course the big swing to religious law was Dobbs v Jackson Women’s Health Organization last year overturning Roe v Wade. This year it was 303 Creative v. Elenis — a case involving the balance between individual religious rights and public accommodations.  In 303 Creative, the Supreme Court ruled that the First Amendment prohibits the state of Colorado from forcing a website designer to work with content that conflicts with her beliefs,  such as gay marriage.

The case overturns a ban on commercial discrimination based on sexual  orientation in the 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  The 303 Creative case also calls into question the 2015 case  Obergefell v. Hodges in which the court said same-sex marriages were unconstitutional. 

Justice Sonia Sotomayor’s dissenting opinion  in 303 Creative notes how far the decision crosses the line separating church and state: “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”  This is a backlash against  people’s rights, she says. “New forms of inclusion have been met with  reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”

Other cases this term included: 

Counterman v. Colorado   — A “true threats” case — The court said that the First Amendment limits laws that make it a crime to threaten people on the internet. In such cases, governments  must prove that the defendant acted with a culpable mental state, and not only that his words were objectively threatening. The ACLU commended the court’s decision. The case is also significant in that the  court used the New York Times v Sullivan standard, which two of the justices (Thomas and Gorsuch) would like to overturn. That now seems unlikely.

US v Hansen– Criminal solicitation —  A law against encouraging illegal immigration is constitutional, the court said, so long as it applies specifically to criminal acts and not to general ideas about immigration, which are protected under the First Amendment.

Groff v. DeJoy —  Religious accommodation — A US Postal Service delivery worker sued because he was being forced to work on Sundays.  “Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” the court said.

Gonzalez v Google LLC and Twitter v Taamineh both involved the extent of protection for YouTube (Google) in automatically posting and recommending terrorist recruiting videos; they also involved the broader question of how social media and the internet are to be regulated. The SCOTUS Blog has a valuable repository of documents about the case. In both cases, the anti-terrorism law was held NOT to apply, and no decision was made about Section 230 specifically or whether or not to change the way social media and the internet are regulated.

censorship

Tic-Tok banned in 19 US states, and often on wifi at public universities, because it poses a theoretical national security risk by giving the Chinese government an ability to monitor users.

Journalists arrested in Asheville, NC, for taking video of police enforced  evictions.  They were convicted of trespassing in April, 2023, but in May, forty five  journalism and human rights organizations wrote in support of an appeal.  And on May 30, defendants Matilda Bliss and Melissa Coit filed a  motion to dismiss the charges. 

Proposals for book bans and gag orders in education have increased 250 percent in 2022 compared to 2o21, according to a study by PEN America, a non-profit free speech advocacy group.

libel

Voting machine company libel suits continue against Fox News,  One America News Network and three  Trump advisors, despite the settlement of the Dominion case on April 19, 2023.  That settlement came after Fox underestimated the strength of Dominion’s case against them, according to a May 27, 2023 NY Times article. 

The Smartmatic voting machine company is the second to bring a libel case against Fox over lies about election fraud in 2020.  Participants in that case took depositions in the fall of 2023 and say the trial might be scheduled for 2025. The allegation is that Fox and OANN aired a pattern of defamatory claims from Trump supporters about illegal  manipulation of vote counts that threw the 2020 election to Joe Biden. Depositions in advance of the trial have shown that Fox personalities did not believe the claims at the time they were aired.  One Fox personality, Tucker Carlson, was forced to resign from Fox News due (in part) to the disgrace he brought onto the network.

privacy

New European regulations on digital privacy will take effect in 2023 and 2024.  As part of the new push to improve digital privacy, the EU fined Facebook / Meta   1.2 billion Euros for privacy violations on May 22, 2023.

Digital media

State of Missouri v Biden — Federal government pressure on social media  sites is a violation of their First Amendment rights according to a sweeping decision by a federal judge. A July 4 decision in a Louisiana federal court restricted communication between the Biden administration and social media platforms — calling it “Orwellian” violation of the First Amendment. The Biden administration disagrees.  Fox headlined the issue: “Big Tech Censorship Goes to Court.

Section 230,  (of Title 47, US Code)   the social media liability shield, still stands after two similar cases Gonzalez v Google LLC and Twitter v Taamineh  by the US  Supreme Court on May 18, 2023 (noted above).

Section  230 is unpopular on both sides of the political aisles. The  Biden White House has  renewed the call for repeal of  the liability shield for social media companies in of 2022.   President Joe Biden is focused on six reform principles, which also include stronger competition  and privacy protection laws, greater transparency and more  consideration of mental health issues.

The Brookings Institution has a Guide for Conceptualizing the debate over  Section 230, such as individual harms, general harms and policy challenges.

COPYRIGHT

Dr Dre sends “cease & desist” letter to Rep. Marjory Taylor Green, who is using his music without permission on social media.

Steamboat Willie, the first Mickey Mouse cartoon, goes into the public domain (loses copyright protection) this year. What will it mean? Not that much, says Brooks Barnes in the New York Times Dec. 27.  

A  federal court in California rejected Facebook’s  “safe harbor”  Section 230 argument in a copyright case in January 2023.

Close to home 

Virginia state consumer data protection act took effect Jan 1, 2023.  Critics say it doesn’t go far enough,

Social media:   State Del. Nadarius Clark, D-Portsmouth, is proposing an investigation into the impacts of social media on Virginians.

Anti-fraternity ordinance  in Radford — Sec. 120.1-64.   entitled “Additional requirements for Greek organizations/signs”  — remains in effect, despite  Reed v Town of Gilbert, 2015, and the “content discrimination principle.”

Protests curtailed in Hong Kong

Protest in Hong Kong, March 2023, held behind “crime tape.”  (Associated Press)

According to the Hong Kong Democracy Council,  authorities have jailed more than 1,500 political prisoners since 2019, half of whom are under the age of 25. https://www.washingtonpost.com/opinions/2023/07/01/hong-kong-china-crackdown-democracy/

John Stewart and the Fox libel suit

This segment of The Problem with John Stewart was broadcast before the Fox – Dominion settlement      announced April 19, 2023.

Pushing back against online harrassment

Federal agencies will fight online harassment  across four main lines of effort, the Biden administration said March 3, 2023. These are prevention, survivor support, accountability, and research, according to a White House announcement.

Since its launch, the Task Force  to Address Online Harassment and Abuse has heard from hundreds of stakeholders—survivors, advocates, parents, educators, law enforcement, medical and legal professionals, and researchers—who discussed the significant harm caused by online harassment and abuse.

The Task Force is part of Biden’s call to action in the State of Union for solutions to address online safety, health, privacy, and accountability.

Alex Jones and libelous hate speech

Alex Jones (Wikipedia).

Alex Jones is bankrupt. The host and owner of  the far-right fake news conspiracy-peddling website “Infowars.com” owed $1.5 billion dollars by the end of 2022 to people harmed by his lies about  the massacre at an elementary school in Sandy Hook CT a decade beforehand.

The cascade of losses in libel suits began with a Texas jury’s Aug. 5, 2022 decision to award  $50 million in actual and punitive damages to parents of the massacre’s victims. Four more libel suits  in Texas and Connecticut also ended with guilty verdicts and heavy fines.

Jones’ lies about Sandy Hook began within hours of the massacre, and were frequently  repeated since then. He falsely claimed that the Sandy Hook elementary school massacre of 2012 was a hoax and  that the parents of the children killed  at the school were “crisis actors.”  As a result, Sandy Hook parents were subjected to harassment and other damages, on top of the profound grief of losing their children. One family has had to move 10 times to avoid Jones’ followers.

Jones’ attorneys argued that the First Amendment protects his right to make mistakes and that other people, not Jones, were to blame for the harassment.

But it’s too late for that argument. Jones already lost the first Texas libel suit by refusing to cooperate with the court, and default judgments were issued.  The only question in the Texas case and others involves the amount of damages.  Continue reading

Remembering Oprah’s mad cow libel case

By Asheley R. Landrum, Texas Tech University

Oprah celebrates the ruling in her favor on Feb. 26. 1998. AP Photo/LM Otero

More than twenty years ago (1998), images of staggering cattle and descriptions of brains resembling Swiss cheese became associated with one of the most popular television programs of the day when Texas Panhandle cattlemen sued “The Oprah Winfrey Show” for defamation under Texas’ “veggie libel law.” They claimed the program’s negative portrayal of their business caused a steep decline of beef prices.

On the surface, this conflict looked like a battle between an industry and the TV producers who portrayed it negatively. But at its heart was some complicated science that had the potential to scare the public and be sensationalized by the media.

Today’s practitioners of science communication grapple with the difficulty of transmitting science information via the media to a lay audience. This 1998 trial serves as a rare public case study documenting the media’s imperfect attempts to clarify the science of mad cow disease in the midst of a celebrity spectacle.

Ultimately Oprah won the legal case. But how did the public’s understanding of the science fare?

Continue reading

SUMMER I – 2023 – COMMUNICATIONS LAW


This summer class in communications law is open to all students  interested in modern debates over how best to uphold Constitutional guarantees of freedom of religion, speech, press, petition and assembly. 

Although a basic understanding of US government is helpful, this class is open to all students, and pre-requisites will be waived.

Legal questions about communications turn up every day.  These include:

  • The NY Times v Sullivan case is the basic standard for the courts in deciding the Dominion v Fox News libel case;
  • The Brandenburg v Ohio imminent lawless action standard is being used in lawsuits against former President Donald Trump over harm for Jan. 6, 2021 riot injuries;
  • The responsibilities of social media companies, especially for  “de-platforming,” relate to Section 230 of the Telecommunications Act;
  • The strict scrutiny test for local government sign censorship was applied in the 2015 Supreme Court case Reid v Town of Gilbert should inform local governments about Greek letter censorship;
  • and many more issues.

The class is taught by RU Professor Bill Kovarik who frequently writes about legal and technological issues for regional and national media.