Thursday, January 26, 2023

Ian Milheiser, Jan 25, 2023  

Trump’s worst judge is now a dangerous threat to press freedom

It’s not immediately clear how much money is at stake in this case, but the amount is likely to be quite high. The plaintiffs claim that the media defendants conspired to shut down or severely harm anti-vaxxer websites and similar content that collectively brought in millions of readers and viewers. Federal antitrust law permits antitrust plaintiffs to recover “threefold the damages” they suffered because of a defendant’s unlawful actions.

And they’re seeking those damages from members of a group known as the Trusted News Initiative (TNI), a partnership made up of some of the most important tech and media companies around the globe. According to the TNI’s website, this group seeks to bring “together organisations across media and technology to tackle harmful disinformation in real time.”

The TNI also identifies a long list of media and tech institutions as its “core partners”:

AP, AFP, BBC, CBC/Radio-Canada, European Broadcasting Union (EBU), Financial Times, Information Futures Lab, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Reuters, Reuters Institute for the Study of Journalism, Twitter, The Washington Post, Kompass – Indonesia, Dawn – Pakistan, Indian Express – India, NDTV – India, ABC – Australia, SBS – Australia, NHK – Japan.

The Children’s Health Fund plaintiffs draw many of their allegations against this media partnership from publicly available information — such as a 2020 speech by BBC executive Jamie Angus, where he said that the TNI “has developed a shared early-warning system to alert partners about disinformation that has the potential to become viral and cause significant harm to the integrity of elections.”

Similarly, a December 2020 announcement published on the BBC’s website revealed that the TNI also seeks to “combat spread of harmful vaccine disinformation.”

...The crux of their legal argument is that the TNI engaged in a “group boycott,” a forbidden practice under federal antitrust law, where multiple competitors within an industry collude to deny essential goods or services to other competitors. Specifically, the Children’s Health Fund plaintiffs suggest that news organizations within the TNI colluded with tech companies within TNI to deny anti-vaxxer sites access to platforms like YouTube, Facebook, or Twitter.

At least some of these plaintiffs’ factual claims appear to be true. TNI does exist. It does include both major news companies and major tech platforms. And it did seek to “combat spread of harmful vaccine disinformation.”

But even if these plaintiffs eventually prove that top news and tech executives got together in a smoke-filled room and plotted to suppress plaintiffs’ anti-vaxxer content, there is a big, glaring problem with their legal arguments. Antitrust law does prohibit group boycotts that seek to suppress competition within an industry, but it does not prevent competitors from working together toward shared social or political goals.

Federal law prohibits competitors from banding together in a conspiracy “in restraint of trade.” The purpose of this ban is to prevent companies from engaging in anti-competitive practices that distort the market and leave consumers worse off. It’s not to prevent companies from working together toward shared political or social goals.

Indeed, if antitrust law did forbid competitors from working together on such goals, then advocacy groups such as the US Chamber of Commerce or the National Association of Manufacturers would be unlawful because these organizations pool resources from multiple competing businesses to lobby policymakers.

The Supreme Court drew the line separating economically motivated boycotts (which ordinarily are not allowed under federal antitrust law) and politically or socially motivated ones (which are often protected by the First Amendment) in two decisions: NAACP v. Claiborne Hardware (1982) and FTC v. Superior Court Trial Lawyers Association (1990).

In the former case, the NAACP led a boycott where Black consumers refused to patronize white merchants in Claiborne County, Mississippi. The purpose of this boycott was to advance various civil rights-related demands, including desegregation of all public facilities, integration of bus stations, and the hiring of more Black police officers.

In ruling that the boycotters’ nonviolent actions were permissible, the Supreme Court focused on the fact that their goals were political and not economic. Yes, the Court explained, the boycotters must have known that the boycotted merchants “would sustain economic injury,” but that did not change the fact that “the purpose of [the boycotters’] campaign was not to destroy legitimate competition.”

Indeed, the Court held that suppressing this boycott would give “insufficient weight to the First Amendment’s protection of political speech and association.”

The Trial Lawyers case, meanwhile, involved a group of lawyers who had historically been paid by the District of Columbia to represent indigent criminal defendants, but who collectively refused to take on additional cases until the District raised the rates it paid these lawyers.

Although this boycott, which successfully convinced DC to raise these rates, did have clear political implications — higher rates for indigent defense lawyers meant that more and better attorneys would agree to represent such clients — the Court deemed it to be an impermissible economic boycott. “The agreement among the CJA lawyers was designed to obtain higher prices for their services and was implemented by a concerted refusal to serve an important customer in the market for legal services,” the Court explained. Such a “constriction of supply” the Court determined, “is the essence of ‘price-fixing.’”

American Bar Association, April, 2020 

Nationwide, union membership numbers have been on the decline for decades. In public defense, however, an opposite trend seems to be taking hold. More and more public defender offices across the country have moved to form collective bargaining units.

Milheiser, Jan 9, 2023

The Supreme Court hears a case this week that endangers workers’ ability to strike

The Supreme Court hears a labor dispute on Tuesday involving striking truck drivers who walked off the job to try to secure a better contract from their employer, a company that provides premixed concrete for construction projects. Yet, while Glacier Northwest v. International Brotherhood of Teamsters is a fairly unremarkable case, the stakes for unionized workers could be enormous.

Glacier Northwest, the employer behind this case, seeks to upend a more than 60-year-old rule protecting unions from lawsuits when workers exercise their federally protected right to strike.

"the Trusted News Initiative (TNI), a partnership made up of some of the most important tech and media companies around the globe." The sentence makes me want to puke.

The Intercept

Elon Musk Caves to Pressure From India to Remove BBC Doc Critical of Modi 

...Pushing back against censorship of the BBC documentary, members of Parliament from the opposition All India Trinamool Congress party Mahua Moitra and Derek O’Brien defiantly posted links to it online.

“Sorry, Haven’t been elected to represent world’s largest democracy to accept censorship,” Moitra posted. “Here’s the link. Watch it while you can.” Moitra’s post is still up, but the link to the documentary no longer works. Moitra had posted a link to the Internet Archive, presumably hoping to get around the block of the BBC, but the Internet Archive subsequently took the link down. She has since posted the audio version on Telegram. 


Twitter said 100 accounts with Russian ties were removed for amplifying narratives that undermined faith in NATO and targeted the United States and the European Union. 

Sheryl Sandberg and Top Facebook Execs Silenced an Enemy of Turkey to Prevent a Hit to the Company’s Business

There's a lot more

Facebook makes money by feeding people's biases, whatever they are, but it's better to shut down the speech of the paranoid than to break up the monopolists that feed them, or neuter them and make them liable.

Milheiser, Jan 11, 2023, responding to a question to anyone on twitter:
 "What's 100% a total scam but we still accept it in society?" 

Milheiser Dec 4 2022 [my highlighting]

The deranged Supreme Court case that threatens US democracy, explained
Moore v. Harper is a test of whether this Supreme Court can ever be trusted with power. 

...Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws.

repeats: "Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper." [my highlighting (again)]

The adoption of new republican state constitutions across the American continent was a transcendent achievement in the late 1770s, acclaimed by Americans everywhere. These new state constitutions were the beating heart of the American Revolution. In a now-famous letter to his wife Abigail on May 17, 1776, John Adams explained, with pride and awe, the monumental import of the Confederation Congress’s decisive vote to encourage each state to adopt is own new constitution: A “whole [state] Government of our own Choice, managed by Persons who We love, revere, and can confide in, has charms for which Men will fight.”

So of course state constitutions were understood as supreme over state legislatures at the Founding! And of course state courts could—and did—enforce these state higher laws against state legislatures. Prominent state judicial review under state constitutions predated the Philadelphia Convention, The Federalist No. 78, and Marbury v. Madison. Indeed, state constitutions formed the basic template for the federal Constitution.

Milheiser is a fucking idiot. 

tagged  Freedom of Speech and Academic Freedom and Judicial Review, etc. etc.

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