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Prosecution for Re-Tweeting Request to Identify Police Officer

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According to The Verge (Adi Robertson), Kevin Alfaro was trying to identify a masked police officer at a protest:

[A] now-deleted [Tweet by Kevin Alfaro] included a photo of a masked on-duty [Nutley, N.J.] police officer with a request that “If anyone knows who this bitch is throw his info under this tweet.” Because of the mask, the officer is not readily identifiable from the photograph, and there do not appear to be any replies revealing his identity….

Alfaro’s GoFundMe describes a June 26th Nutley For Black Lives protest where young anti-racism demonstrators were confronted by pro-Christopher Columbus counter-protestors. The groups were eventually separated by barricades and police, although News 12 New Jersey reported that no arrests were made.

The campaign description says Alfaro was upset by officers who were “very friendly” with counter-protesters and covered their badges, a practice that some officers across the country have adopted to dodge complaints from protesters. “In an attempt to identify a specific police officer who was befriending someone harassing me, I uploaded a photo.” His tweet includes a picture of the “Thin Blue Line” American flag printed on Sandomenico’s mask a symbol that’s used to signify police solidarity but is fraught with racist associations.

Various people, including Georgana Sziszak, retweeted Alfaro’s Tweet. Now the Nutley Police Department has filed criminal charges against Alfaro, Sziszak, and the other retweeters. I got the Sziszak charging document, and here’s my sense of the matter.

[1.] N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person … knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.

According to the criminal complaint, the government’s theory is that the post “caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property.”

[2.] But the Tweet (and the retweet) aren’t “lewd, indecent, or obscene.” The most on-point precedent in State v. Carroll(N.J. Super. Ct. App. Div. 2018), in which the defendant was prosecuted under the same statute for posting about a witness in a criminal case,

lying ass RAT ass nigga! fuck you! I swear I use to tell butt & jo all the time don’t trust this nigga! how tf (the fuck) you go against ya mans for some chump change!! I’ll never respect you! …

PUBLIC SERVICE ANNOUNCENT RAT ALERT THIS ONE OF THE SCARIEST THINGS EVER THIS NIGGA HOLD GUNS & RUN TO THE COPS NEVER KNOW WHAT HE GOT UP HIS SLEEVE NEXT STAY AWAY FROM THIS RATATOUILLE MICKEY MOUSE STUART LITTLE ASS NIGGA TELL A FRIEND TO TELL A FRIEND [name deleted] AKA SNITCHOS I MEAN [nickname deleted] IS A FUCKING RATTTTTT CHECK HIS SHIRT & HIS PANTS I THINK HE WIRED.

[Nickname deleted] just living his life like it’s golden posting pictures & shit w glasses on like he cool BOY YOU A FUCKING RAT! ! ! hope somebody blow them glasses tf (the fuck) off his face

Not covered by the statute, the Carroll court held:

The Facebook posts were indisputably coarse and insulting. But, it is difficult to discern how they constitute “lewd, indecent, or obscene material.” … In its brief opposing defendant’s appeal, the State asserts only that defendant’s posts were “indecent,” apparently conceding that they were neither lewd nor obscene.

The Criminal Code does not define “indecent.” However, the term is generally associated with nudity or sexuality, as our cases on indecent exposure have discussed. Chapter 34 of the Criminal Code is entitled “Public Indecency” and includes prohibitions on prostitution, obscenity, sexually oriented businesses, and related crimes.

In sum, since “indecent” is associated with nudity or sexuality neither of which appear in defendant’s posts we find not even a well-grounded suspicion that defendant committed cyber-harassment under N.J.S.A. 2C:33-4.1(a)(2).Therefore, the trial court erred in finding probable cause for the cyber-harassment charge.

And if the posts in that case aren’t “indecent,” it’s hard to see how “If anyone knows who this bitch is throw his info under this tweet” is indecent (and it certainly isn’t either lewd or obscene).

[3.] Now if the “lewd, indecent, or obscene” element isn’t satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn’t apply regardless of whether it was posted with the intent to “caus[e] Det. Sandomenico to fear that harm will come to himself, family and property.” ButCarrollalso suggests that the Tweet wouldn’t be covered by this, either. Such speech can only be punished if it’s a punishable “true threat” of criminal attack, and here’s what Carroll said about that:

A public statement expressly urging unspecified others to violence may be criminalized if it conveys the speaker’s own serious intent to inflict harm otherwise, it is not a threat…. A true threat is a “serious expression of intent” to harm, not merely the expression of a “serious desire” that harm should befall someone….

A reference to the actions of others may constitute a true threat if it is sufficiently detailed and precise, or if the speaker has rallied followers to commit violence by using similar language in the past, so as to imply the person posting will himself either act on the threat or direct others in his control to do so.

If that’s so as to statementsexpressly urgingviolence, then it’s even more clearly true as to statements that don’t expressly urge violence, but merely solicit information that might indirectly help some people act violently (and might also help many more people lawfully file complaints, further investigate the police officer, and so on). InCarroll, the court found that the harsh condemnation of the witness just barely crossed the line to show probable cause to file charges (“the weight of the evidence of a true threat or incitement” in that case, the court said, was “weak”). Given this, the speech in this case falls well to the constitutionally protected side of the line. And in any event, as I mentioned, with the “lewd, indecent, or obscene” element of the statute unsatisfied, the entire prosecution under this statute would fail regardless of whether the speech might be said to be threatening.

[4.] Could Sziszak be prosecuted for her retweet, even if Alfaro could have been prosecuted for his initial Tweet? As a matter of general criminal law principles, sure, if her speech were covered by the statute and consisted a true threat. But I think it’s likely that she’s immune from such prosecution under the federal 47 U.S.C. 230 statute.

That statute is usually applied to block tort lawsuits (such as libel lawsuits) against Internet service providers. But courts have also interpreted it as providing immunity from most kinds of state criminal prosecution. The statute has an express exception for any “Federal criminal statute,” but not for state criminal statutes. SeeBackpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 127475 (W.D. Wash. 2012) (“If Congress did not want the CDA to apply in state criminal actions, it would have said so.”); Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318, at *14 (E.D. Pa. Aug. 30, 2006) (likewise).

And courts have also held that the statute applies even to deliberate forwarding of others’ online posts, and not just passive hosting. To quote Novins v. Cannon, 2010 WL 1688695, *2 (D.N.J. 2010),

As multiple courts have accepted, there is no relevant distinction between a user who knowingly allows content to be posted to a website he or she controls and a user who takes affirmative steps to republish another person’s content; CDA immunity applies to both. See Barrett v. Rosenthal, 40 Cal.4th 33, 62, 51 Cal.Rptr.3d 55, 146 P.3d 510 (2006); Carafano v. Metrosplash.com Inc., 339 F.3d 1119, 112325 (9th Cir.2003); Ben Ezra, Weinstein, and Co., Inc. v. Am. Online Inc., 206 F.3d 390 (10th Cir.2000). As the Ninth Circuit aptly noted in Batzel v. Smith, “The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance.” 333 F.3d 1018, 1032 (2003). Similarly, it does not matter how Defendants republished the alleged defamatory statementswhether by email, website post, or some other method.

I’m not sure whether this is a sound ruleperhaps 230 should indeed be limited to passive hosting, and not immunize people who deliberately forward actionable material. But that does seem to be a broadly accepted rule, and it would apply to retweeting. (Liberte v. Reid(2d Cir. 2020) concluded that it “need not decide whether a retweet qualifies for Section 230 immunity,” but the cases cited above suggest that it does.)

In any event, though, this federal preemption is pretty exotic for New Jersey trial court, especially when the court can easily dispose of the matter simply by concluding, followingCarrollbut also the plain text of the statute, that the “lewd, indecent, or obscene” element is just not satisfied.

[5.] Also, as best I can tell, the prosecutor hasn’t yet decided whether to press charges, and may drop them before or at the hearing. As I learned when I was the target of criminal harassment charges in New Jersey myself, New Jersey allows anyonepolice officer or notto file such criminal charges, without the prosecutor’s prior approval. Only after charges are filed does the prosecutor decide whether to drop them (which is what happened in my case) or go ahead with them. I imagine that prosecutors are more likely to go along with police officers’ filings than with ordinary citizens’ filings, but I hope that here the absence of the statutorily required elements is so clear that the prosecutor will decline to prosecute, at least on this complaint.

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories – KTVZ

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories - KTVZ

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Sen. Bernie Sanders of Vermont and Senate Democratic Leader Chuck Schumer of New York are calling on Majority Leader Mitch McConnell to create a new bipartisan committee focused on election integrity and schedule hearings to reassure Americans over a process President Donald Trump has repeatedly sought to undermine.

There is growing anxiety among Democrats, and some Republicans, that Trump will not only continue to sow doubt over the legitimacy of the coming election but throw the subsequent count into chaos by declaring victory before all the votes can be tallied, including the millions that will arrive by mail.

In a letter to McConnell, Sanders and Schumer quote back the Kentucky senator’s own words, in which he attested to the reliability of mail-in voting by citing its successes in Oregon, Washington and Colorado, which have been using the system for years.

Trump has repeatedly questioned the validity of mail-in voting, promoted conspiracy theories questioning election security, called on supporters to act as unsanctioned “poll watchers,” and suggested that the absence of a clear result by the evening of November 3 would in some way cast doubt on the eventual outcome. Key allies in powerful positions, like Attorney General Bill Barr, have followed suit. Barr has persisted in puffing up a debunked claim that ballots received by mail would somehow strip the sender of their privacy — ignoring well-established safeguards.

By escalating the matter now, Sanders and Schumer are responding to growing concern, in partisan and nonpartisan spaces, that Americans are not adequately prepared for the potential of a longer-than-usual wait for results or Trump’s willingness to short-circuit the democratic process if he smells defeat.

“Democrats and Republicans in Congress must come together to ensure that we have a free and fair election where every vote is cast and counted without intimidation,” Sanders told CNN, “where no one has to put his or her health in danger to cast a ballot, and where we have full confidence in the results.”

The proposed hearings would invite a cross-section of election officials from across the country to testify to the security and reliability of mail-in, early- and in-person voting — subjects on which Sanders and Schumer, again, referenced McConnell’s own words.

“Despite the clear security of our vote-by-mail system, some have continued to undermine it with unsubstantiated claims of voter fraud,” they wrote. “As you have correctly said, people ‘can vote early, you can vote on Election Day, or you can drop it in the mail,’ and that voters should ‘not worry about your vote not counting.’”

The minority leader and Sanders, an independent who caucuses with the Democrats, also want more detailed discussion about the fraught hours, or days, after the polls close and a real-time watch of the election horse race potentially swings from one candidate to another.

“We know a number of states may well be counting ballots for a period of time after Election Day, and that those votes may be determinative in this election,” the senators wrote to McConnell. “To avoid disinformation, conspiracy theories, and suspicion about results, we must understand the likely timeline for this process.”

The letter goes on to reference the recent war games-style preparations conducted by a group called the Transition Integrity Project, a bipartisan gathering of operatives and academics that made headlines when some of the outcomes of their exercises — including “both street-level violence and political impasse” — were reported on in late July.

“A bipartisan group of experts and officials have studied multiple scenarios where the outcome of the election was not immediately known. Some of these scenarios resulted in unrest and even violence,” Sanders and Schumer wrote, suggesting the Senate should elevate similar discussions and familiarize the public with the uncertainties ahead. “We would like to hear from the most knowledgeable people in the country as to how we can do everything possible to make sure that the election and the period afterward is secure and peaceful.”

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HHS official sorry for conspiracy theory video

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HHS official sorry for conspiracy theory video

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HHS supported Caputo, with a statement that called him a critical, integral part of the presidents coronavirus response, leading on public messaging as Americans need public health information to defeat the COVID-19 pandemic.

There was no immediate statement from the White House.

Attempts to reach Caputo were unsuccessful.

On Capitol Hill, Sen. Patty Murray, D-Wash., called on Azar to fire Caputo, accusing the spokesman of trying to interfere with CDC reports to the medical and scientific community, as well as the public at large. And Senate Minority leader Chuck Schumer, D-N.Y., called on Azar himself to resign, citing interference with the CDC as one example of what he termed the administration’s failures.

Officials at CDC have privately complained of recent efforts by political appointees at main HHS to try to edit or press for changes in the agency’s weekly MMWR publications, a go-to resource for public health professionals.

MMWR articles are technical, but they reveal telling details. One published earlier this year noted that while Trump’s travel restrictions dramatically reduced travel from China in February, nothing was being done at that time to restrict travel from Italy and Europe, where the coronavirus was spreading widely and rapidly. Analysis of virus samples from hard-hit New York in March suggested it was introduced there from Europe and other parts of the U.S., the CDC article reported.

Caputo is an unswerving Trump loyalist. His recent book, The Ukraine Hoax, claims the presidents phony impeachment was rooted in a vast conspiracy.

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS…

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS...

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My RSS Feedunwinona:

This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS and Polio narrative (among others), only we’re seeing it escalated to weeks and months instead of years or decades.

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