Hate Speech

RT the Hate: France and Twitter Censorship, Part Two

Last October I wrote about the rise in popularity among French Twitter users of the hashtag #unbonjuif ("a good jew"). In December we saw a growth in other offensive hashtags, including the homophobic #Simonfilsestgay, ("if my son is gay") or the xenophobic #SimaFilleRamèneUnNoir ("if my daughter brings a Black man home").

Subject Area: 

Jurisdiction: 

Garcia v. Nakoula

Threat Type: 

Lawsuit

Date: 

09/18/2012

Party Receiving Legal Threat: 

Nakoula Basseley Nakoula; Google, Inc.; YouTube; Does 1-200

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

California Superior Court, Los Angeles County (state); United States District Court for the Central District of California (federal)

Case Number: 

BC492358 (state); 2:12-cv-8315 (federal district court); 12-57302 (Ninth Circuit)

Legal Counsel: 

Timothy Alger, Perkins Coie (for defendants Google and YouTube)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.

Content Type: 

Subject Area: 

CMLP Notes: 

AFS created post and edits through 1/3/12

Jurisdiction: 

France Continues to Confuse Censorship with Civility

A French court last month stomped on what we in the United States consider a “basic, vital, and well-established liberty” – the right to record and publish the public activity of police.

Jurisdiction: 

Subject Area: 

Content Type: 

United States v. White (updated)

Date: 

10/21/2008

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

William White

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Illinois

Case Number: 

08-CR-851

Legal Counsel: 

Nishay Kumar Sanan; Chris M. Shepherd

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

The United States indicted William White, webmaster of the white-supremacy website Overthrow.com, alleging that he solicited others to harm "Juror A," the foreperson of the jury that convicted Matt Hale, another white supremacist, of soliciting the murder of a federal judge in 2003.

The indictment alleged that White targeted Juror A in an article posted to the Overthrow.com front page entitled "The Juror Who Convicted Matt Hale."  The post allegedly read:

"Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale.  Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number]. . . ."

The government argued that White was "aware that individuals associated with the white supremacist movement, who were the target audience of 'Overthrow.com,' at times engaged in acts of violence directed at non-whites, Jews, homosexuals, and persons perceived by white supremacists as acting contrary to the interests of the white race."  (Indictment ¶ 5a.)  In order to corroborate the claim that White intended the post to incite violence against Juror A, the indictment also references previous posts by White in which he published the addresses of other white supremacist "targets," often with commentary enticing his readers to kill or otherwise harm these individuals.  (Indictment ¶¶ 5b-5e.)

A superseding indictment, filed on February 10, 2009, included more examples of previous Overthrow.com posts that advocated violence against white supremacist "targets."  White moved to dismiss both indictments, claiming that his article represented protected speech under the First Amendment and did not constitute a true threat.  Claiming bias, White also moved for recusal of all judges from the Northern District of Illinois.  Since this motion was unopposed, Judge Hibbler recused himself and was replaced by Judge Lynn Adelman of the Eastern District of Wisconsin.

In her July 21, 2009 order, Judge Adelman granted White's motion to dismiss, finding that his speech was protected under the First Amendment.  Specifically, she noted that the posts "do not expressly solicit or endeavor to persuade another person to harm Juror A. . . . nowhere in them does defendant expressly advocate that Juror A be harmed."  Analyzing prior case law, she goes on to state that "the cases relating to disclosure of personal information, even under threatening or intimidating circumstances, uniformly support the proposition that defendant's speech is protected."

The government has appealed the decision to the Seventh Circuit Court of Appeals.

UPDATE:

On June 28, 2010 the Court of Appeals for the Seventh Circuit reversed the dismissal of an indictment against White, finding that the indictment was legally sufficient and the First Amendment issue is properly addressed by the requirement of proof beyond a reasonable doubt at trial, not by a dismissal of the indictment.

Since criminal solicitation is an inchoate crime, the act of asking another to commit a crime is the punishable act. The crime is complete once the words are spoken with the required intent. Whether the First Amendment protects White's right to post personal information turns on his intent in posting that information. If the intent was to request someone to harm the juror, then the crime of solicitation is complete. The Court of Appeals ruled that this is an inquiry into the facts and the inferences that may be drawn from the facts regarding White's intent, and is a question for the jury.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

08/04/2009 - LB editing

Jurisdiction: 

Department of Homeland Security v Does

Threat Type: 

Disciplinary Action

Date: 

07/12/2009

Party Receiving Legal Threat: 

John Does

Type of Party: 

Government

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

According to the Wayne County Star, the Department of Home­land Security is investigating racially insensitive comments posted to an article on the Wayne County Star’s website about a July 12 incident in which Border Patrol officials questioned the legal status of passengers on a boat near Sodus Point, New York. According to the Star, the IP addresses associated with the comments were linked to Border Patrol/Homeland Security computers. According to the New York Times, Department rules prohibit employees from using government computers to disseminate material that could offend fellow employees or the public.

The offending posts have since been removed from the site.

Jurisdiction: 

Subject Area: 

Content Type: 

Guardian Civic League v. Philadelphia Police Department

Threat Type: 

Lawsuit

Date: 

07/15/2009

Party Receiving Legal Threat: 

Philadelphia Police Department; Sergent McQ; Domelights.com; John Does 1-10,000

Type of Party: 

Organization

Type of Party: 

Individual
Organization
Government

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:09-cv-03148-CMR

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

The Guardian Civic League has filed a class-action lawsuit on behalf of 2,300 black Philadelphia police officers against the Philadelphia Police Department for allegedly allowing its officers to post racist and offensive content on Domelights.com, a website focused on law enforcement. 

Guardian's three-count complaint claims that the Philadelphia Police Department engaged in the creation of a hostile work environment on the basis of race (42 U.S.C. § 1983), discrimination (42 U.S.C. § 1981), and conspiracy to interfere with civil rights (42 U.S.C. § 1985) when white officers, Does 1-10,000, posted racist content to the forum site.  

Guardian alleges that "an Active Duty Philadelphia Police Sergent" with the username 'McQ' founded and operated . . . . [t]he racially offensive website." Compl. ¶ 3. Guardian attached screenshots of various posts from Domelights.com, reading "Guns Don’t Kill People. Dangerous Minorites Do. How much longer can you ignore this?" and "adults can't speak proper English or spell at a 3rd grade level, but they can sing among 'theyselves' to lyrics of a rap song." Compl. ¶¶ 2, 7.  Guardian asserts that these "offensive postings . . .  are part of the intentional purpose of the creator of Domelights.com Sgt. 'McQ.'" Compl. ¶ 8.

Guardian asserts that "White police officers use Domelights.com at work, in front of African American Police Officers, and discuss the contents of this racist website, make jokes about it. "Compl. ¶ 5. Also, Guardian argues that the Police Department is aware of the website but although "African American Police Officers have complained to the Philadelphia Police Department regarding Domelights.com,  . . . no actions have been taken to restrict this website or to discipline those police officers responsible for its racially offensive and legally violative content." Compl. ¶ 48.

Guardian seeks a ban on "the operation and use of Domelights.com by Philadelphia Police Officers" as well as compensatory and punitive damges.  Compl. ¶ 10.

The Philadelphia police have not yet filed an answer to the complaint. 

Content Type: 

Subject Area: 

Priority: 

1-High

Jurisdiction: 

Ban 'Hate Speech' at Your Own Peril

Glenn Greenwald accurately explains the grotesque result of laws that seek to curb that amorphous problem of “hate speech” — a concept that turns free speech on its head. And unlike many of his colleagues on the political left, Greenwald explains why he’s defending people whose speech frequently deserves contempt:

Subject Area: 

Warman v. Beaumont

Date: 

01/06/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jessica Beaumont

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

International

Court Name: 

Canadian Human Rights Tribunal

Case Number: 

T1106/8705

Verdict or Settlement Amount: 

$4,815.00

Legal Counsel: 

Paul Fromm (non-lawyer, aided Defendant)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (plaintiff)

Description: 

Over a two-year period, Jessica Beaumont wrote and published over 1000 posts on a white supremacist forum called Stormfront White Nationalist Community, using the pseudonym "Jessy Destruction."

Here are some illustrations of her alleged postings: Regarding blacks moving to western Canada, she wrote, “It could get worse, lets just cross our fingers and hope they all die off from AIDS.” Regarding mixed-race relationships, she wrote, "Ever seen a tar black negroid and a chink? That’s a pretty sick/funny site," and she recalled witnessing a white man “with a veiled muslim that looked fresh off the boat, with the mud baby in the stroller!” Regarding Jews, she wrote, "I don’t understand why someone would attack helpless dogs [as] opposed to going after those dirty Jewish animals directly," and, "I believe that Jews are literally spawn of Satan himself." In one post she summed up her feelings for non-whites as follows: "I just don’t feel the need to be-friend non-whites, as they can do nothing for me, nor would I like to associate with them. I am fine with my own kind, and always will/have been. Theres my f*cking answer. Good enough?"

In January 2006, Richard Warman, an Ottawa-based lawer who specializes in human rights law, filed a complaint against Beaumont before the Candian Human Rights Tribunal. He alleged that, by publishing discriminatory statements on the Internet, Beaumont had exposed individuals and minority groups to hatred and/or contempt in violation of the Canadian Human Rights Act. The Canadian Human Rights Commission, of which Warman formerly was a member, participated in the litigation.

After a hearing, the tribunal found for Warman, and entered an order prohibiting Beaumont from communicating similar hate messages through the Internet in the future. The tribunal also ordered her to pay special compensation of $3,000 (Canadian) to Warman for discriminatory statements written against him, including calling him "that retarded jew warman." (Although Warman is not Jewish, the tribunal reasoned that "it is obvious that Ms. Beaumont perceived him as such.") Additionally, the tribunal levied a $1,500 (Canadian) penalty against Beaumont, payable to the government of Canada.

During the hearing, avowed neo-Nazi Paul Fromm testified on Beaumont's behalf, and while not a lawyer, provided Beaumont with assistance.

(Candian Dollar amounts were converted into U.S. Dollars for purposes of the "Verdict or Settlement Amount" field.)

Content Type: 

CMLP Notes: 

Looking in the database, there's a chance this should have a settlement amount of $4815.

- Chris Wells

You are correct, Chris. I added the appropriate amount to the verdict field

Jurisdiction: 

Subject Area: 

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