Freeman hired a lawyer, though it wasn’t clear what could actually be done. But, in 2021, the lawyer was approached by a nonprofit called Protect Democracy. The group had been founded a few years earlier by former lawyers in the office of the White House counsel during the Obama Administration. Protect Democracy, which now has more than a hundred employees and a budget of thirty million dollars, aims to defend America from authoritarianism; it has worked on a range of litigation, legislation, research, communications, and software projects—including VoteShield, a platform now monitoring the integrity of voter-registration data in two dozen states—and has successfully advocated for changes to election laws. One of its founders, Ian Bassin, was recently given a MacArthur “genius” grant. But P.D. has often pursued its goals in novel ways. It has recently begun to use defamation law—which was designed to protect against reputational damage rather than authoritarian takeover—to fight against the flood of disinformation. If the group sued the right liars, its members believed, they could stop dangerous lies from spreading. The strategy has concerned some free-speech advocates. But Bassin believes that targeted defamation suits can “produce a systemic rebalancing of incentives to advance truth.” In late 2021, Protect Democracy sued Giuliani, and a half dozen others, for defamation of Freeman and Moss. Freeman, who often quotes from the Bible, told me that she felt like an underdog in the fight. “I think about David and his slingshot,” she said. “He had five smooth stones.”…
As this was unfolding, P.D. was working on what it called its “Law for Truth” strategy. “We could see the dominoes,” Rachel Goodman, a former A.C.L.U. attorney, who heads the Law for Truth project, told me. A relatively small number of individuals and media outlets, she explained, account for most election-related disinformation online. According to one study, more than half the retweets of the forty-three most prominent false or misleading stories about voting, prior to the 2020 election, originated from three dozen users. Since 1964, the protective standard in libel law has been “actual malice”: if you could show that someone had willfully lied or recklessly spread mistruths, and damaged a reputation in the process, you might hold him legally responsible. “The idea of getting accountability for people defamed as part of the Big Lie was really interesting,” Goodman said….
If there’s a center-left consensus on the perils of democratic instability at the moment, it does not extend to P.D.’s use of defamation law. Some of the pushback concerns free speech. “This kind of litigation may make liars more cautious,” Eugene Volokh, who teaches First Amendment law at U.C.L.A., told me. “But the good chilling effect on lies and the bad chilling effect on truths walk hand in hand.” In an age of incipient authoritarianism, it’s especially important that speech protections be broad, critics say, so that news organizations are not afraid of reporting on what they believe to be true. Fox invoked free speech in a recent counterclaim against Smartmatic, saying that its lawsuit is “designed to serve as a warning to others to think twice before exercising their own free speech rights.” In January, a judge allowed Fox to advance its claim. Nora Benavidez, a free-speech attorney in Atlanta, explained, “Going after the purveyors of disinformation must be very carefully done so we don’t develop case law that ultimately undermines free speech—which, by its very nature, includes lies.”
Samantha Hamilton, an attorney at the University of Georgia Law School’s First Amendment Clinic, told me that defamation law was a deficient tool in the fight against disinformation because the biggest lies, such as “The election was stolen” or “Vaccines don’t work,” typically don’t cause reputational harm to a specific individual. “Defamation really doesn’t have a role to play,” she said. Bassin defends the project’s results so far. Ten days after OAN was served with the lawsuit, DirecTV informed OAN that it would not renew the network’s contract that spring. Bassin acknowledged that several factors were at play but told me, “Our complaint was the straw that broke the camel’s back.” Soon after, Verizon also cut ties with OAN. “As a result of us filing, there’s a good case to be made that OAN lost access to a quarter of U.S. households with TVs,” Bassin said. (A spokesperson for DirecTV told me that its decision was primarily financial.) Still, as Benavidez pointed out, even millions in damages might have little long-term effect on behemoths like Fox. “It’s just the cost of doing business now,” she said.
Behavioral experts have also found that most people tend to discount or reframe new information, like legal verdicts, that don’t fit into their belief systems. This form of cognitive bias complicates the problem of disinformation and potentially undermines attempts to fix it with verdicts. “If we’re expecting defamation law to do much of the heavy lifting in solving a complex issue like disinformation, I think we’re expecting too much,” Hamilton said. During the Giuliani trial, I noticed an audience member in the courtroom, a lawyer named Fletcher Thompson, who seemed distressed. During a bathroom break, I approached him. After days of testimony, he was still convinced that Biden had stolen the election. “I can see what happened,” he told me. “I make my own inferences. I think there was a plan to do this.”
Law for Truth plans to file more suits in the coming months. Ultimately, though, Bassin and his colleagues understand that P.D.’s impact has limits. Democracy is neither a natural system nor an easy one to maintain…
Category Archives: cheap speech
You Can Pick Up at 50% Off All of My Yale University Press Books, Including Cheap Speech and Election Meltdown, Until May 17
“Will hackers, trolls and AI deepfakes upset the 2024 election?”
“Meta Faces E.U. Investigation Over Election Disinformation”
Meta, the American tech giant, is being investigated by European Union regulators for the spread of disinformation on its platforms Facebook and Instagram, poor oversight of deceptive advertisements and potential failure to protect the integrity of elections.
On Tuesday, European Union officials said Meta does not appear to have sufficient safeguards in place to combat misleading advertisements, deepfakes and other deceptive information that is being maliciously spread online to amplify political divisions and influence elections.
The announcement appears intended to pressure Meta to do more ahead of elections across all 27 E.U. countries this summer to elect new members of the European Parliament. The vote, taking place from June 6-9, is being closely watched for signs of foreign interference, particularly from Russia, which has sought to weaken European support for the war in Ukraine.
The Meta investigation shows how European regulators are taking a more aggressive approach to regulate online content than authorities in the United States, where free speech and other legal protections limit the role the government can play in policing online discourse. A new E.U. law, called the Digital Services Act, took effect last year and gives regulators broad authority to rein in Meta and other large online platforms over the content shared through their services.
“As Meta flees politics, campaigns rely on new tricks to reach voters”
After years of pitching its suite of social media apps as the lifeblood of campaigns,Meta is breaking up with politics. The company has decreased the visibility of politics-focused posts and accounts on Facebook and Instagram as well as imposed new rules on political advertisers, kneecapping the targeting system long used by politicians to reach potential voters.
Waves of layoffs have eviscerated the team responsible for coordinating with politicians and campaigns,according to people familiar with the matter who spoke on the condition of anonymity to discuss private personnel matters. This includes foreign-based workers and U.S. employees who promoted the company’s products to politicians and fielded questions from campaigns about their services.
An advertising sales team, which once embedded with the Trump team during the 2016 election campaign, is now responsible for many of their previous responsibilities, the people said.
Meta’s shift away from current events is forcing campaigns to upend their digital outreach in a move that could transform the 2024 election.Comparing March 2020 to March 2024, both the Biden and Trump campaigns saw 60 percent declinesin their average engagement per Facebook post, a Washington Post review found, with double-digit declines on Instagram.
The Trump team has cast Meta’s moves as an effort to tip the scales in favor of Biden. The Biden campaign, meanwhile, had already begun to shift its online focus, rolling out a cadre of influencers and volunteers to spread their messages across private spaces on social networks….
Meanwhile, political campaigns are adjusting to this new reality. Biden appears to be countering the trend by posting more frequently on social media accounts — including from official White House pages — to drive engagement. Biden-linked Facebook posts increased from about 300 in March 2020 to more than 600 in March 2024, while Trump’s posts dropped from more than 1,000 in March 2020 to about 200 in March 2024, the Post analysis found.
While Trump dramatically increased posts to his own social network, Truth Social, he has refrained from publishing frequently on Twitter, Facebook or YouTube. Top Trump campaign adviser Chris LaCivita likened Meta’s push away from politics to a form of shadow banning, when tech companies allow users to post but secretly depress who sees the content.
“Content creators ask Meta to reverse politics limits on Instagram, Threads”
Taylor Lorenz for WaPo:
Hundreds of political and news content creators, along with activists, meme account administrators and journalists, have signed an open letter to Meta asking the company to reverse its decision to limit the reach of accounts posting “political content” on Threads and Instagram.
Meta announced in February that it no longer would recommend content about politics and social issues on the two social media platforms, which have tens of millions of users in the United States.
The decision has alarmed users who post about social issues, including LGBTQ rights, women’s rights, racial inequality and disability. And independent journalists and content creators say they’ve struggled to reach their audiences in recent weeks since the change was rolled out. The limits, they say, have significantly affected creators who are Black, female, disabled and LGBTQ.
My New One at Slate: “2016 Election Fraudster ‘Ricky Vaughn’ Might Finally Be About to Face the Music”
I have written this piece for Slate. it begins:
On Friday, a federal appeals court in New York will consider a case with key implications for the 2024 election. At issue is whether it violates federal law to trick people on social media and elsewhere about when, where, or how to vote, and whether such a law is consistent with the First Amendment. A ruling favoring the government would go a long way toward protecting voters.Back in 2016, a man named Douglass Mackey, tweeting under the name “Ricky Vaughn,” repeatedly directed messages to Black voters encouraging them to vote by text for Hillary Clinton. The intent was to trick these voters out of their franchise; of course, votes sent by text don’t count. Thousands sent texts to vote. We don’t know how many of them later did not attempt to vote in a permissible way.
Mackey was convicted by a jury of violating a Reconstruction-era law, 18 U.S.C. § 241, that made it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” The federal government’s theory was that Mackey conspired with others to deprive voters of their right to vote.
On expedited appeal before the U.S. Court of Appeals for the 2nd Circuit, Mackey concedes that, “at worst,” his tweets containing false information about how to vote “were calculated to cause voters to send futile text messages and then stay home on election day.” But, he argues, Section 241 does not apply to conduct such as his, he was not on fair notice that Section 241 applied to conduct like his, and even if it covered this conduct, Section 241 would apply to so much protected speech that it would violate the First Amendment’s protection for freedom of speech.
In an amicus brief supporting the federal government, Protect Democracy, the Yale Media Freedom and Information Access Clinic, and I take issue with Mackey’s first and third arguments….
“China’s Advancing Efforts to Influence the U.S. Election Raise Alarms”
Covert Chinese accounts are masquerading online as American supporters of former President Donald J. Trump, promoting conspiracy theories, stoking domestic divisions and attacking President Biden ahead of the election in November, according to researchers and government officials.
The accounts signal a potential tactical shift in how Beijing aims to influence American politics, with more of a willingness to target specific candidates and parties, including Mr. Biden.
In an echo of Russia’s influence campaign before the 2016 election, China appears to be trying to harness partisan divisions to undermine the Biden administration’s policies, despite recent efforts by the two countries to lower the temperature in their relations.
Some of the Chinese accounts impersonate fervent Trump fans, including one on X that purported to be “a father, husband and son” who was “MAGA all the way!!” The accounts mocked Mr. Biden’s age and shared fake images of him in a prison jumpsuit, or claimed that Mr. Biden was a Satanist pedophile while promoting Mr. Trump’s “Make America Great Again” slogan.
“I’ve never seen anything along those lines at all before,” said Elise Thomas, a senior analyst at the Institute for Strategic Dialogue, a nonprofit research organization that uncovered a small group of the fake accounts posing as Trump supporters.
Ms. Thomas and other researchers have linked the new activity to a long-running network of accounts connected with the Chinese government known as Spamouflage. Several of the accounts they detailed previously posted pro-Beijing content in Mandarin — only to resurface in recent months under the guise of real Americans writing in English.
“From Pizzagate to the 2020 Election: Forcing Liars to Pay or Apologize”
Michael J. Gottlieb can never remember the exact amount — it’s $148,169,000— that a jury ordered Rudolph W. Giuliani to pay the Georgia election workers Ruby Freeman and Shaye Moss. But Ms. Freeman’s words after the December 2023 victory are indelible to him.
“Don’t waste your time being angry at those who did this to me and my daughter,” said Ms. Freeman, 65, who with her daughter Ms. Moss, 39, was falsely accused by Mr. Giuliani of aiding an imagined plot to steal the 2020 presidential election.
“We are more than conquerors.”
Less than a decade ago, the two women would have struggled to find a lawyer. But Mr. Gottlieb, a partner at the firm Willkie Farr & Gallagher and a former associate counsel in the Obama White House, represented them for free. Convinced that viral lies threaten public discourse and democracy, he is at the forefront of a small but growing cadre of lawyers deploying defamation, one of the oldest areas of the law, as a weapon against a tide of political disinformation.
Mr. Gottlieb has also represented the owner of the Washington pizzeria targeted by “Pizzagate” conspiracy theorists as well as the brother of Seth Rich, a young Democratic National Committee staff member whose 2016 murder ignited bogus theories implicating his family. In the Giuliani case, Mr. Gottlieb, his law partner Meryl Governski and other members of his team worked with Protect Democracy, a nonpartisan group that pushes for laws and policies to counter what it sees as authoritarian threats.
Before the Trump era and the explosion of social media, though, such cases were virtually nonexistent.
“The new information landscape we’re in is a little bit like the Wild West — a lawless space,” said Ian Bassin, a co-founder of Protect Democracy. Lawyers, he said, have turned to defamation, which is legally defined as any false information, either published, broadcast or spoken, that harms the reputation of a person, business or organization. “It’s one of the most effective and only strategies for dealing with these out-and-out falsehoods,” Mr. Bassin said.
In the past few years, more than a dozen high-profile defamation cases have made their way through the courts. A majority have been brought against defendants on the right, but the right brings lawsuits too, often against media organizations.
“It Depends Who’s Doing the Jawboning”
I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.
Or, if you prefer:
Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.
March 28 Livestream: “AI’s Impact on the 2024 Global Elections”
Quite the lineup at Columbia.
“Fretting About Election-Year Deep Fakes, States Roll Out New Rules for A.I. Content”
Wisconsin for the first time this year will begin requiring political advertisers to disclose the use of content generated by artificial intelligence or face financial penalties. But the battleground state, one that played a critical role in the last two elections, is not alone.
An increasing number of states have advanced A.I.-related legislation to combat attempts to mislead voters during the 2024 election, according to a new analysis by the Voting Rights Lab, a national voting rights organization.
Voting Rights Lab said it was tracking over 100 bills in 40 state legislatures, amid some high-profile cases of “deep-fake” video technology and computer-generated avatars and voices being used in political campaigns and advertisements.
One of the more glaring examples happened in New Hampshire, where a criminal investigation was opened after voters there received robocalls mimicking President Biden’s voice and urging Democrats to not vote in the state’s primary in January….
Kari Lake, Pulling a Giuliani, Concedes Liability for Defaming Election Official Stephen Richer; Wants to Go Straight to Damages (That Didn’t Work Well for Giuliani)
Kari Lake is asking the court to quickly issue a judgment and to decide how much she will pay Maricopa County Recorder Stephen Richer in the defamation case he brought against her, according to a filing in Maricopa County Superior Court on Tuesday.
Richer sued Lake — who ran for governor in 2022 and is now running for U.S. Senate — for defamation last year, alleging that Lake made defamatory allegations that he had assisted in rigging the gubernatorial election against Lake. They are both Republicans.
Richer’s legal team is treating Lake’s filing, a motion for default judgment, as an admission of liability.
“She has decided she cannot defend herself in this case despite continuously saying she has evidence,” said Ben Berwick, counsel at Protect Democracy, among the firms representing Richer in the lawsuit.
Lake’s attorneys do not defend Lake’s claims about Richer in the filing, nor do they challenge any of Richer’s arguments about the facts. Instead, they ask the court for a quick hearing to decide damages.
After filing the document, Lake said in a video posted on X that Richer’s lawsuit against her was “lawfare,” and she wouldn’t be taking part in the lawsuit. It was unclear what she meant, and one of her attorneys, Jennifer Wright, told Votebeat to contact her communications team for additional comment….
Richer said in his complaint that these statements had caused harm to him and his family, including harassment that took a toll on his physical and mental health.
Lake is asking for medical records to support his damages claim, and specifics to support his allegation that her claims cost him Republican support from donors and others.
The defamation case was just about to enter the discovery phase ahead of trial, in which Lake would have been required to provide Richer’s attorneys with private statements she had made about her claims about Richer.
“Just the idea that Stephen, who is a committed public servant who has shown a real commitment to the integrity of elections in Arizona, would intentionally sabotage her election is absurd on its face,” Berwick said on Monday, before Lake’s filing. “Among other things, they are both Republicans.”
“Deepfake Kari Lake video shows coming chaos of AI in elections”
Hank Stephenson has a finely tuned B.S. detector. The longtime journalist has made a living sussing out lies and political spin.
But even he was fooled at first when he watched the video of one of his home state’s most prominent congressional candidates.
There was Kari Lake, the Republican Senate hopeful from Arizona, on his phone screen, speaking words written by a software engineer. Stephenson was watching a deepfake — an artificial-intelligence-generated video produced by his news organization, Arizona Agenda, to underscore the dangers of AI misinformation in a pivotal election year.
“When we started doing this, I thought it was going to be so bad it wouldn’t trick anyone, but I was blown away,” Stephenson, who co-founded the site in 2021, said in an interview. “And we are unsophisticated. If we can do this, then anyone with a real budget can do a good enough job that it’ll trick you, it’ll trick me, and that is scary.”