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Monthly Archives: April 2017
The flawed rhetoric around NATO’s two percent – Politheor: European Policy Network
Posted: April 19, 2017 at 9:45 am
Mareike Mller
Policy Researcher at Politheor: European Policy Network
Mareike Mller studies International Security and Political Economy at the LSE and Sciences Po. Prior to her studies she has gained professional experience among others at the World Health Organization, the German Development Agency GIZ and the Federal Foreign Office.
Increased contributions to NATOs budget might not significantly alter member states security situation the aggressive rhetoric around them could.
Rumour has it that at their much-discussed meeting in Washington, Donald Trump handed Angela Merkel an invoice, amounting to the alleged 300 billion US Dollars Germany owed the US for not living up to its NATO budget quota. Although both parties denied this happened, the news still sparked heated debates about NATOs budget and its relevance for security in Europe and the world. To fully understand the breadth and consequences of the discussion, a closer look at NATOs history and recent changes in military spending is needed.
NATO was established in 1949 as an intergovernmental military alliance to provide peace and security for its member states. Based on the principle of collective defence, last reiterated on September 12, 2001, the North Atlantic Treaty Organizations member states are committing to defend each other in case of an external attack. NATOs budget is to consist of two percent of the member states GDP leaving every member to contribute according to national capabilities. This rule was agreed upon in 2014, leaving member states until 2024 to fulfil this goal. Although experts doubt the accuracy of the measure to assess security efforts, debates persist already about some countries paying less, while others, the US in the first place, pay more.
Despite the current debate, Sean Kay from Carnegie Europe points out that most challenges to stability in and around Europethe Eurozone, refugee pressures, energy security, and terrorismhave little to do with conventional military spending. In fact, defence spending diverts resources necessary to meet these challenges. Still, rising challenges and insecurities cause increasing defence spending already. It is actually a strong sense of unpredictability that strengthens the will to secure ones nation against possible surprises regarding recent or potential political changes on both sides of the Atlantic just as much as rising instability in other parts of the world, leading to what some would argue is a redefinition of the post-cold war order.
For instance, for those smaller states at the borders of NATO, fear is rising about potential interventions, and them turning into the playground for disputes between Russia, China, and the US and Europe. In 2016, only Estonia, Greece, Poland, and Great Britain met NATOs two percent goal. Willingness to increase defence spending in the Baltic states is however going up. Secretary General Stoltenberg announced though that Romania too will meet the target this year, followed by Lithuania and Latvia in 2018.
While defence spending is not a predictor of actual security or insecurity, it is a crucial indicator of international tensions. In fact, most of the times rather than expenditures reflecting real threat, an upward spiralling effect leads countries to increase defence expenditures when their neighbours do so. Since Russias annexation of Crimea in 2009, the growth of the Islamic State, and the fear failed or failing states, like Syria, around the same time, defence spending around the globe is not decreasing, and unlikely to do so any time soon. In Europe, Germany is NATOs second largest financer of the civil and military budget, followed by the UK and France.
What economic consequences arise from this? Although increased military spending supports weapon and defence industries, which especially countries like France, Germany, India or South Korea profit from, also negative economic effects exist, which are more far reaching than it appears at first sight: protectionism, increasing nationalism, and a reduction of trust in the international system, combined with the fear of overall security problems, is at the root of crumbling transnational trust and hence increasing defence efforts. In a market-oriented understanding of international economics, the downward spiral of (perceived) insecurity and economic protectionism, manifesting itself in limits to trade, investment, and financial cooperation a prominent example are economic sanctions is thus hardly economically beneficial on neither side of the Atlantic.
Altogether, whether countries meet their NATO target or not does not matter for security what does though is the rhetoric around it. Words have the power to create security, or insecurity respectively. When Donald Trump demands increased spending in order for the US to continue protecting Europe, the real security threat is not NATOs limited budget or need for additional economic resources. Its an aggressive rhetoric that creates an ambiance of instantaneous insecurity and imminent threat, and sets the tone for future debate. Instead, Jan Techau suggest that stepping up defence capabilities consists not only of spending, but more defense cooperation, more shared threat assessments, and more leadership by hitherto reluctant nations. European leaders should hence continue to stay cool and deescalate.
Tags: Europe, NATO, Op-ed, security, United States
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Follow the money: Can NATO afford another Cold War? – New Eastern Europe
Posted: at 9:45 am
Published on Tuesday, 18 April 2017 10:39 Category: Articles and Commentary Written by Scott Carlson
President Donald Trumps NATO policy is confusing. Regardless of the administrations evolving National Security Strategy, United States role in Europe is in transition. Trumps March 17th meeting with the German Chancellor Angela Merkel reiterated his America First emphasis at home, and an insistence that other NATO members pay their fair share abroad. A picture a "Perfect Storm" of Russian military resurgence, European Union instability skating on thin politico-economic ice and a 20 trillion dollars US cold front. This Trans-Atlantic ice age is capable of putting the freeze on any potential warming of the Alliances regional security efforts. To make the move from a more measured Western European Allied Assurance (2014 Wales Summit) to greater Russian Deterrence (2016 Warsaw Summit) NATO will require greater operational funding. With "Great Recession" contagion and an anaemic economic growth the question we should be asking is whether NATO can afford another Cold War. Past performance is no guarantee of future results. Yet the cold, hard truth comes down to cold, hard cash.
Current Balance Sheets: The European Reassurance Initiative
To fund the Alliances mission, 28 NATO members unanimously agreed at the 2014 Wales Summit that they would aim to move towards the 2 per cent guideline within a decade. Three years later, only five countries are fully fulfilling this obligation. Against this backdrop, nervous EU diplomats are pushing for more US financial support to counter a Russian military now on the rebound. All Alliance members are in support of the mission, even if they do not currently meet the 2 per cent threshold. Allies have increased activities along five lines of effort (troops, training, equipment, infrastructure and building capacity) through an enhanced strategic exercise design known as the Readiness Action Plan. This strategy will train elements of the NATO response force, joint NATO elements that build capacity through stability operations.
These efforts arise from the European Reassurance Initiative (ERI), a combined effort that demonstrates a united NATO commitment designed to deter growing Russian aggression. Funded as part of the Consolidated and Further Continuing Appropriations Act of 2015, this additional military spending supplements Operation Atlantic Resolve (OAR), a multi-year US led NATO endeavour. ERI recently quadrupled, growing from less than one billion to over 3.4 billion US dollars in fiscal year 2016. From US Air Force hangar upgrades in Iceland to US Navy Baltic, Mediterranean and Black Sea operations, Operation Atlantic Resolve demonstrates the US commitment to the security of NATO. In the US Army alone, ERI funding will bring almost 5,000 personnel, more than 2,600 vehicles and 84 aviation assets to Europe. Yet with deficit spending, overleveraged European governments and the US approaching its 20 trillion dollar debt limit, can NATO actually continue to follow the money?
Accounts Past Due
As defined by the Stockholm International Peace Research Institute (SIPRI), military expenditures include all current and capital expenditures on the armed forces, peacekeeping forces, defence ministries and other government agencies engaged in defence projects, paramilitary forces, and military space activities. Of note here is a critical point when the trend lines crossed in 2013: A 1.5 per cent GDP rise in Russian spending in comparison to a 1.5 per cent GDP decline in UK and US expenditures. The Russian Federation is now spending twice the amount of what it produces domestically on its military than the United States, Greece, the UK, Estonia and Poland.
As the Alliances largest contributor, the US's GDP per capita is two times that of Russias GDP. As a result, Russias economic ambitions for military development are not only elevated, but clearly claim a higher national priority at the expense of other Russian domestic programmes. Spending is not the only criteria for measuring military advantage, however if these trends continue Russia will be able to further leverage its regional influence through an enlarged military presence. It is already a reality.
Future Lines of Credit: How NATO Warms Up the Cold War
Not only has Russian military spending doubled from the mid-1990s, the Federations debt has decreased by 90 percent, from almost 100 percent to 10 percent of the GDP. Inversely, with the exception of Estonia, NATO members government debt increased, in some cases dramatically. Notably, US government debt has doubled in the past 15 years.
Combining the data reveals a sobering reality. In the past 15 years, Russias military spending has doubled while debt levels have decreased by 90 per cent. US military spending has been cut in half while debt levels have doubled. If current trends continue, US and Alliance credit lines will have to be raised. The end result is greater national debt, further deficit spending and less funding for other domestic programmes. Although this is not optimal, the alternative is even worse.
Correlation is not necessarily causation. Factors that shape European regional security are not limited simply to straight line economic comparisons. The strategic effects of Russian and NATO funding entail more data analysis than basic correlations between military spending as a percentage of GDP and government debt. Fiscal numbers alone are not the sole indicator of military advantage. Quantitative evidence is more helpful when assessed qualitatively.
Two conclusions are offered. First, a strategic view. The US will likely continue to fund the largest portion of the NATO budget (22 per cent at the end of the Obama Administration). Yet according to the National Intelligence Councils Global Trends 2030 report Alternate Worlds, it is highly likely that Americas global economic impact over the next decade will diminish. As first among equals the US will continue its role in world leadership, however, unless reversible steps are taken US debt service will continue to grow. To advance the Alliances mission, increased NATO monetary contributions will be required from other members. Second a tactical view. Anticipate Trumps "America First" mantra to be tweeted only with regards to domestic social programmes. With a ten per cent requested increase in defence spending, expect the debt ceiling to be raised. Follow the money NATO for as long as possible.
Scott Carlson is United States Naval Reserve Officer and Operations Officer for the US military with 25 years of Department of Defense service in training, education, critical thinking and policy formation. He holds an MA degree in National Security and Strategic Studies from the United States Naval War College. His research interests focus on European-Russian geo-political interactions.
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Follow the money: Can NATO afford another Cold War? - New Eastern Europe
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Ex-NSA manager R.I.’s first cybersecurity officer – The Providence Journal
Posted: at 9:45 am
Mike Steinmetz will make $176,419 a year to advise the governor on digital security policy.
PROVIDENCE, R.I. -- Governor Gina Raimondo has appointed Mike Steinmetz, a former National Grid and National Security Agency manager, as Rhode Island's first cybersecurity officer.
Steinmetz, who started Monday, will be Raimondo's top adviser on digital security policy and lead the creation of a state cybersecurity strategy, according to a news release Tuesday from the governor's office.
"Modern infrastructure is more than just roads and bridges," Raimondo said the release. "It's also the digital connections we're making faster and more frequently than ever before."
Steinmetz will make $176,419 a year, according to Raimondo spokesman David Ortiz.
The cybersecurity officer position was created in the state budget approved by lawmakers last year and reports to the director of administration. It is not considered a cabinet position and does not require state Senate confirmation, Ortiz said.
Before joining state government, Steinmetz was a National Grid director of strategy and planning and director of governance and compliance. Before that, he worked for the U.S. Department of Defense and the National Security Agency.
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Shadow Brokers leak links NSA to alleged US-Israeli Stuxnet … – RT
Posted: at 9:45 am
Published time: 17 Apr, 2017 17:26Edited time: 18 Apr, 2017 08:25
Malicious computer malware that caused substantial damage to Irans nuclear program may be the work of the NSA, researchers burrowing into the latest leak from hacking group Shadow Brokers have discovered within the computer data.
A tool found in Fridays leak matched one used by the notorious Stuxnet malware.
First detected in 2010, Stuxnet is believed to be the joint work of the US and Israel; a claim that Edward Snowden backed up in a 2013 interview but which has never been acknowledged by either government.
Designed to target industrial control systems used in infrastructure facilities, Stuxnet modifies data on controller software affecting their automated processes.
Computer code found in last weeks leak from Shadow Brokers, alleged to have been stolen from the NSA, was also found to match that used in Stuxnet.
Officials, who spoke under anonymity to The Washington Post, said in 2012 that the worm, developed under George W.Bushs administration and continued under Barack Obamas, was designed to damage Irans nuclear capabilities.
When it infected Irans nuclear facility in Natanz, it reportedly destroyed a fifth of their centrifuges after causing them to spin out of control, all the while relaying readings back to technicians at the plant that operations were normal.
"There is a strong connection between Stuxnet and the Shadow Brokers dump," Symantec researcher Liam O'Murchu told Motherboard. "But not enough to definitively prove a connection."
A definite link will be almost impossible to prove as Stuxnets script was later copied and used in an open-source hacking toolkit, allowing it to be replicated numerous times online.
However, O'Murchu said the script found in Fridays leak was last compiled on September 9, 2010 - three months after Stuxnet was first identified and shortly before it was added to the hacking toolkit.
Also contained in the leak was ASCII art of a medal with the words Won the gold medal!!! above it. Stuxnet was reportedly given the codename Olympic Games.
Security architect Kevin Beaumont tweeted the results of an antivirus program check on the Shadow Brokers exploits leaked on Friday, which returned that it had detected Stuxnet.
The latest evidence against the NSA was contained in Fridays leak from Shadow Brokers, which also detailed hacks aimed at Windows PCs and the SWIFT network, used to process payment orders.
READ MORE: What the hack? The leaks that shaped 2016
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Shadow Brokers leak links NSA to alleged US-Israeli Stuxnet ... - RT
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SC Governor: The Second Amendment Is Your Concealed Carry Permit – Breitbart News
Posted: at 9:43 am
On April 6,Breitbart News reported that the South Carolina House passed permitless carry legislationsponsored by stateRep. Mike Pitts (R-14). That legislation,which would abolish the need for concealed carry permits, is now with the Senate.
Pitts bill would recognize South Carolinians right to carry a handgun openly or concealed without a permit for self-defense.The Post and Courierquoted Pitts saying, This bill is a very simple bill. It means, by definition of the Constitution, it gives you the ability to keep and bear arms without having to be permitted by the country.
Governor McMaster concurs.According to The Charlotte Observer, McMasters spokesman, Brian Symmes, said, Governor McMaster appreciates the Houses hard work on this bill, believes it is constitutional and will sign it if it reaches his desk.
There are currently12 states that require no permit for exercising the Second Amendment right to bear arms: Alaska, Arizona, Idaho, Kansas, Maine, Mississippi, Missouri, New Hampshire, North Dakota, Vermont, Wyoming, and West Virginia. And permitless carry is the law of the land in99.4 percentof Arkansas and Montana.
AWR Hawkins is the Second Amendment columnist for Breitbart News and host of Bullets with AWR Hawkins, a Breitbart News podcast. He is also the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com.
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SC Governor: The Second Amendment Is Your Concealed Carry Permit - Breitbart News
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Second Amendment Advocate Willes K. Lee Re-Elected To NRA Board Of Directors – AmmoLand Shooting Sports News
Posted: at 9:43 am
Statement of Gulf War veteran Willes K. Lee, re-elected to the National Rifle Association of America Board of Directors.
Honolulu, Hawaii -(Ammoland.com)-It is truly humbling to receive support from our members and many non-members to continue to serve you as a Director on the NRA Board. Thank YOU AmmoLand News readers. For 26 years as a soldier, I was privileged to be a Defender of Freedom. I am honored to continue to defend freedom with the National Rifle Association of America, freedom's safest place.
If you are reading this, your vote and support made THE difference. Without having the name recognition of more high-profile candidates, our grassroots victory is important for our five million NRA members, 20 million supporters, and 100 million gun owners. Our Board officers, Executive Vice President Wayne LaPierre, ILA Executive Director Chris Cox and press officers speak for the NRA, but our readers can follow our civil rights progress online at http://www.WillesLee.com, Facebook WillesLeeNRA, and Twitter/Instagram @WillesLee.
Well do our best to keep our grassroots informed and involved so they can do what they love protect the Second Amendment, shoot, hunt, collect, or go out in the backyard and plink.
We have the opportunity to take back our civil rights stolen by anti-gun activists funded by Bloomberg and Soros. It is our time to secure the Second Amendment and regain the liberties stolen by anti-gun progressives. Were working to pass an initial national reciprocity law and the Hearing Protection Act. At state and local levels, Ill engage in challenges across the nation as legislators, judges, and bureaucrats invent new ways to restrict our Second Amendment rights. As important, within the NRA, this win gives a voice to our grassroots members. Since retiring from our military, having been in politics as a member of the Republican National Committee (RNC), Chairman of the Hawaii Republican Party, current President of the National Federation of Republican Assemblies (NFRA) and National Director of the Hawaii Republican Assembly (HIRA), a Director for the American Conservative Union (ACU) Foundation which hosts CPAC, and a Council for National Policy (CNP) member, I am deeply committed to advancing the interests of gun owners while fighting legislative and regulatory attempts to undermine our rights. It is an honor to serve on the NRA Board of Directors, Col. Ollie Norths NRA Military and Veterans Affairs Committee, our NRA Outreach Committee, and as a co-chairman of the Trump-Pence Second Amendment Coalition
I am a member of and will continue to partner with our many effective coalition organizations supporting the Second Amendment. However, none offer the depth and range, no pun intended, of the NRA. In addition to legislation and protecting our civil rights, NRA programs span from competitions, to hunting, youth shooting, collecting, training, self-defense, safety, to conservation and much more. Supporting all our programs, my focus includes legislation, military and veterans, self-defense, the shooting sports, outreach to new segments of our community, and our fastest growing group women gun owners and shooters.
If you are a member of our National Rifle Association of America, thank you. If you are not, please join, today. Thank you to all the voters and non-voters who supported our grassroots campaign to ensure your voice on the NRA Board.
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Second Amendment Advocate Willes K. Lee Re-Elected To NRA Board Of Directors - AmmoLand Shooting Sports News
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Open carry draws fire | Senator says bill about Second Amendment – Sand Mountain Reporter
Posted: at 9:43 am
A proposed state law that would repeal restrictions and make permits to carry concealed firearms optional has drawn opposition from some Alabama sheriffs.
Senate Bill 24 is sponsored by state Sen. Gerald Allen, R-Tuscaloosa, who said he believes in the Second Amendment of the U.S. Constitution, which protects the right of the people to keep and bear arms for the security of a free state.
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Open carry draws fire | Senator says bill about Second Amendment - Sand Mountain Reporter
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First Amendment Day arrives at Iowa State – Iowa State Daily
Posted: at 9:43 am
The 15th annual First Amendment Dayswill take place Wednesday through Friday to celebrate what is arguably the most revered amendment enshrined in the Bill of Rights of the U.S. Constitution.
The First Amendment guarantees five natural rights to the American citizen. It protects freedom of speech and expression, keeps the government from establishing religion and likewiseprotects the free practice of one's religious beliefs. It ensures a free and openpress, thefreedom of association and freedom to petition the government.
Each right is regarded as an integral part of a free Americansociety.
These rights are not onlyestablishedin law,forbidding government infringement, but arealso an ideal to strive toward in widersociety.First Amendment Days celebrate those rights and freedoms.
Events will begin Wednesday with "Depth and Dialog Sessions." Discussion topics will range from "Free Speech vs. Hate Speech," "Free Speech considerations for Faculty and Staff," "Diversity and Inclusion and the First Amendment" and "Think Like a Journalist."
The day will close with "Freedom Sings!" celebrating provocative music.
Festivities will continue Thursday with the "Democalypse March" and "Feast on the First."
Closing the night, keynote speaker Glenn Smith will speak on the importance of individual journalists and news outletsexposing falsehoods, speaking the truth and giving a voice to those who would otherwise wouldn't have one in a time when news is hard to trust and many feel unrepresented.
First Amendment Days 2017 will close with the First Amendment Teaching Workshop seminar on Friday, where faculty and staff ofuniversitiesand high schools will be shown new ways to better teach their students about the value and importance of the First Amendment.
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First Amendment Day arrives at Iowa State - Iowa State Daily
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DAVID ROSMAN: Supreme Court must uphold the First Amendment – Columbia Missourian
Posted: at 9:43 am
It is Easter Sunday, and I cannot sit here on this most holy of Christian holidays without talking about the separation of church and state. More specifically, the upcoming U.S. Supreme Court case Trinity Lutheran Church of Columbia v. Comer and actions taken by our governor in an attempt to sway the court in favor of Trinity Lutheran.
For those of you unfamiliar with the case, here is the short summary: The Missouri Department of Natural Resources has a program that provides chopped-up used tire rubber to non-profits to help make playgrounds safer for the kids through a grant process. In 2012 Trinity Lutheran Church preschool made application for such a grant, and though "qualified," were denied based on Missouri constitutional law.
"That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship."
Trinity Lutheran is suing on First Amendment grounds. The guiding principle of the First Amendment's Establishment Clause has been made clear in case law and in the writings of those who helped draft the First Amendment to our Constitution that every person has the right to worship the way they feel is correct and the state will not interfere or support any established religion.
According to Americans United for the Separation of Church and State, "While the preschool has an open admissions policy, it functions as a self-described 'ministry of Trinity Lutheran Church.'" The DNR believed that because Trinity Lutheran is a religious institution and they expound religious teachings as part of the daily instruction at the preschool, allowing the grant would be in violation of Article 1,Section 7.
Trinity Lutheran's position was that the position taken by the DNR is in violation of the First Amendment of the U.S. Constitution more specifically, the Establishment Clause. They enlisted the Alliance Defending Freedom, a religious right-wing legal counsel, to represent them in this case.
The alliance claims that 14 other Missouri 501(c)(3) non-profits were awarded the grant for their playgrounds and that Trinity Lutheran, also a 501(c)(3) non-profit institution and otherwise qualified for the grant, was unfairly excluded from the program.
The executive director of the American Civil Liberties Union of Missouri, Jeffrey Mittman,said of the case: "Its about settled constitutional law that protects individuals rights to practice their religion from government interference and ensures that tax payers are not forced to support any specific religion or religion over non religion."
Two federal courts have already ruled against the church. This week the case will be heard by the U.S. Supreme Court, including the newly confirmed Associate Justice Neil Gorsuch. It will be his first test as a justice to see if he will follow longstanding precedent established by the court or arrive at some other position.
We know that he sided with the religious institutions in two other high profile cases: Hobby Lobby v. Sebelius and Little Sisters of the Poor v. Burwell.
Here's the rub. Last week, Missouri Gov. Eric Greitens issued a directive that allowed "religious organizations to apply for state Department of Natural Resources grants," and in turn the DNR is to consider such applications without prejudice. This appears to be an attempt to circumvent the state's long-established constitutional position and the First Amendment. In other words, it's an attempt to influence the court in its deliberations.
Former Missouri Supreme Court Justice Mike Wolff believes it does. He told St. Louis Public Radio that because of Greitens' directive, the court may have nothing to decide, seeing that the position of the state has been reversed.
Nothing can be further from the truth. The governor cannot change the state Constitution simply with a wave of his pen.
This is not a question of anti-Christian sentiment. I am sure that the DNR would have come to the same conclusion if the application came from a Muslim or Jewish preschool that includes the teaching of religious principles as part of the curriculum.
This is a question of state constitutional law concerning an amendment that is clear and direct: There is to be no action by the state to financially support a religious institution.
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DAVID ROSMAN: Supreme Court must uphold the First Amendment - Columbia Missourian
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EFF to California Supreme Court: Website Owners Have a First Amendment Right to Defend Content on Their Platform – EFF
Posted: at 9:43 am
A bad review on Yelp is an anathema to a business. No one wants to get trashed online. But the First Amendment protects both the reviewers opinion and Yelps right to publish it. A California appeals court ran roughshod over the First Amendment when it ordered Yelp to comply with an injunction to take down speech without giving the website any opportunity to challenge the injunctions factual basis. The case is on appeal to the California Supreme Court, and EFF filed an amicus brief asking the court to overturn the lower courts dangerous holding.
The case, Hassell v. Bird, is procedurally complicated. A lawyer, Dawn Hassell, sued a former client, Ava Bird, for defamation in California state court over a negative Yelp review. Bird never responded to the lawsuit, so the trial court entered a default judgment against her. The courtat Hassells requestnot only ordered Bird to remove her own reviews, but also ordered Yelp to remove themeven though Yelp was never named as a party to the suit. (If this kind of abuse of a default judgment sounds familiar, thats not a coincidence; it seems to be increasingly commonand its a real threat to online speech.)
Yelp challenged the order, asserting that Hassell failed to prove that the post at issue was actually defamatory, that Yelp could not be held liable for the speech pursuant to the Communication Decency Act, 47 U.S.C. 230 (Section 230), and that Yelp could not be compelled to take down the post as a non-party to the suit. The trial court rejected Yelps arguments and refused to recognize Yelps free speech rights as a content provider. The California Court of Appeal affirmed the trial courts decision, holding that Yelp could be forced to remove the supposedly defamatory speech from its website without any opportunity to argue that the reviews were accurate or otherwise constitutionally protected.
This decision is frankly just wrongand for multiple reasons. Neither court seemed to understand that the First Amendment protects not only authors and speakers, but also those who publish or distribute their words. Both courts completely precluded Yelp, a publisher of online content, from challenging whether the speech it was being ordered to take down was defamatoryi.e., whether the injunction to take down the speech could be justified. And the court of appeals ignored its special obligation, pursuant to California law, to conduct an independent examination of the record in First Amendment cases.
Both courts also seemed to completely ignore the U.S. Supreme Courts clear holding that issuing an injunction against a non-party is a constitutionally-prohibited violation of due process.
EFFalong with the ACLU of Northern California and the Public Participation Projecturged the California Supreme Court to accept the case for review back in August 2016. The court agreed to review the case in September, and we just joined an amicus brief urging the court to overrule the problematic holding below.
Our briefdrafted by Jeremy Rosen of Horvitz & Levy and joined by a host of other organizations dedicated to free speechexplains to the California Supreme Court that the First Amendment places a very high bar on speech-restricting injunctions. A default judgment simply cannot provide a sufficient factual basis for meeting that bar, and the injunction issued against Yelp in this case was improper. We also explained that the injunction violated clear Supreme Court case law and Yelps due process rights, and that the injunction violates Section 230, which prohibits courts from holding websites liable for the speech of third parties.
As Santa Clara University law school professor Eric Goldman noted in a blog post about the case, the appeals courts decision opens up a host of opportunities for misuse and threatens to rip a hole in Section 230s protections for online speechprotections that already seem to be weakening. If not overturned, as the already pervasive misuse of default judgments teaches, this case will surely lead to similar injunctions that infringe on publishers free speech rights without giving them any notice or opportunity to be heard. The California Supreme Court cannot allow this.
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EFF to California Supreme Court: Website Owners Have a First Amendment Right to Defend Content on Their Platform - EFF
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