May 24th, 2012

Banning Anonymous Speech: Reality Mimics April Fool’s Gag

Really, who’d a thunk it? On April 1st I went live with a gag about Joe Lieberman proposing to ban anonymous speech on the Internet. I used a new blog: McIntyre v. Ohio to run it anonymously. Lots of fun was had, and I did a deconstruction of the hoax the day after, but no journalists were actually taken in.

But were real life politicians actually suckered into it? Or did they come up with this idea on his own?

Two bills  now pending in the New York State Senate and Assembly propose to ban anonymous speech. Yes, this would be in flagrant disregard of prior constitutional case law on the First Amendment. And that primary case is McIntyre v. Ohio for which my “other blog” is named.

The legislation — conjured due to concerns over cyber-bullying — would require anyone with a website:

“upon request remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.” By “web site,” the bill means just what it seems to: Any New York-based website, including “social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.”

The bills will go nowhere, of course, because the First Amendment allows anonymous speech. For a good read on the long and deep history of such speech in the United States, read the concurring opinion of Justice Clarence Thomas in McIntyre.

For more on the subject:

New York to Publius: You’re Done Bully Boy (Simple Justice)

The New York Bill that Would Ban Anonymous Online Speech (Time)

Laughable Online Censorship Attempt Won’t Last a New York Minute (Huffington Post)

As for those that were in on my April Fool’s gag, they deserve once again their due credit for assisting:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (PattericoPatterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (KenPopehat)

Dear Commenters: We Can’t Protect You Anymore (MystalAbove the Law)

Anti-terrorism law threatens First amendment? (Frank Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters(RandazzaLegal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (CubanThe Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (TannebaumMy Law License)

Blind-Squirrel Lieberman Finds Acorn (BennettDefending People)

A One-Two-Punch Against Free Speech (DraughnWindy Pundit)

The Community You Create (Zubon Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (WiseWise Law Blog)



April 2nd, 2012

Section 230 April Fool’s Hoax – A Deconstruction

Is it April 2nd already?

Welcome to April 2nd, and that means deconstructing yesterday’s web hoax that dealt with a phony bill by Senator Joe Lieberman that would effectively ban anonymous commentary on the Internet. The bill does this by stripping away the immunity that content providers currently enjoy from Section 230 of the Communications Decency Act. That would expose bloggers, forum owners and a panoply of others to potential liability. It played out on a dozen blogs that were all in on the joke.

How do I know it was just a joke? Do you really have to ask? If you’re just checking in to this blog for the first time you will find out by looking at this posting of mine from yesterday that this is the fifth year in a row I’ve done one of these. But since I’m now known (in the legal blogosphere) for running an annual gag, I created a new blog in February just for this purpose, to mask my identity: McIntyre v. Ohio. Prior to yesterday, the readership of that blog had been six Bulgarian spam bots and that guy Ken from Popehat. Thanks, Ken.

The new blog is dedicated to anonymous free speech, and named for the leading Supreme Court case on the subject. The idea for it popped into my brain late last year when Senator Lieberman asked Twitter to kill the Taliban feed. Obviously, the government can’t just shoot down someone’s speech rights, no matter how vile, because of that whole First Amendment thingie. This country was built on the marketplace of ideas prevailing, so the answer to political speech with which we disagree has always been “more speech.”

So the April Fool’s idea was that Lieberman would circumvent the First Amendment issue by simply stripping away the immunity that web hosts enjoy, thereby scaring the bejesus out of everyone in the private sector that is in any way involved with a web forum, and forcing people to kill controversial speech out of fear of litigation. It was called the Accountability for Free Discussion Act, or AFD, which is also the acronym for yesterday’s fun fest.

This was the premise: If a whole bunch of bloggers started talking about a major bill that would completely alter the Internet in this country, would any major media company publish the story despite it being unconfirmed and it being revealed on April Fool’s Day?  The great problem, news-wise, of the digital age is the need to get to a story first, or at least fast.  All too often that means taking shortcuts when first is defined in hours, or minutes. The old journalism adage is, if your mother tells  you she loves you, check it out. But that sometimes falls by the wayside.

Lieberman was a perfect (unwitting) straight man for this because, as a pragmatic centrist, he is disliked by passionate ideologues on both sides of the political aisle. That means that there are a lot people who want a negative story about him to be true. People like seeing stories that confirm their own feelings and they are often willing to accept such stories without additional confirmation. (Political commercials feed on this to energize political bases.) One sample comment from someone suspending belief in the hope it was true came out of Daily Kos:

You know, if it was anyone else I’d think it was an April Fool’s joke.
But Lieberman is such a weasel, it has to be true.

There were other reasons for Lieberman as well. The Senator is retiring, making him a good target since there is no political fallout if constituents should actually believe it but don’t realize it was a prank. He is also the chairman of the committee on Homeland Security and can voice such a bill in an anti-terrorism context, with accountability being used as a means to disrupt anonymous communications in various forums. But perhaps the best reason to use Lieberman is that he wore a baseball cap to President Obama’s inauguration. Really Senator, what the hell were you thinking?

The major complicating factor in all this was that April Fool’s Day  fell on a Sunday. Sunday sucks for news and blogs but  we can’t change the calendar.

We tried to use that ugly fact to our best advantage. I figured that if we struck at dinnertime, under the assumption that all of the other April Fool’s gags had played themselves out by that point, we might have a better shot. Also, it would be far less likely for anyone from Lieberman’s office to quickly put out a denial. (If he did put out a denial, we were going to claim victory in that the bill had been withdrawn.) Essentially, the only people still involved with April Fool’s by this time were two groups: kids those telling the same joke for the 30th time because their parents laughed the first time to humor the child, and other kids trying to pawn off the last of the bug-flavored jelly beans.

So we slipped the story out at dinnertime on that  little, bitty blog where the plan was for it to be promptly “found” by a “real” blog, Daily Kos, and then quickly spread. Most of the co-conspirator bloggers that you see below had actually written their bits a few days in advance. We only had a couple hours to create a viral political story from whole cloth. Did we get major media? No. And kudos to those that saw it but didn’t bite.

But were other folks taken in? You bet. And  not just anyone, but the super cynical types that read political blogs and don’t generally believe much of anything — unless it confirms their worst perceptions about others.  Just read the comments at Patterico (politically right) and Daily Kos (politically left) if you don’t believe me.

One big source of inbound traffic was a popular forum called Hacker News. I felt bad about that because, well, those folks are a lot smarter than us and know how to break our digital windows. (Please. Don’t. Keep reading.)

But before any of you get angry at me or my co-conspirators listed below, remember this: Each of the authors participated because we feel strongly about protecting the First Amendment. (I’ve twice defended defamation claims, one in the past and one currently.) So while you may have been fooled for a few hours, or even angered, you should know that those who did the fooling are your teammates in vigilance against those that wish to encroach on our rights to speak freely.  Most of the jokesters are lawyers. We get it.

There are civil libertarians on both sides of the aisle:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (Patterico @ Patterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (KenPopehat)

Dear Commenters: We Can’t Protect You Anymore (MystalAbove the Law)

Anti-terrorism law threatens First amendment? (Frank Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters (Randazza @ Legal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (Cuban @ The Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield @ Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (Tannebaum @ My Law License)

Blind-Squirrel Lieberman Finds Acorn (Bennett @ Defending People)

A One-Two-Punch Against Free Speech (Draughn @ Windy Pundit)

The Community You Create (Zubon @ Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (Wise @ Wise Law Blog)

There are some who may wonder why I go to all the bother of doing this each year. You will find the answer to that question in the same place where I explained why I not only  dressed up in a turkey suit at Thanksgiving time, but actually published the pictures.

Finally, I’ve now run gags regarding the Supreme Court, the White House, and now Congress. I’m officially retired from the April Fool’s dodge. For real. My wife told me if I do this again she will kill me. Then divorce me.

Besides, when you think about it, what else is there? I mean, I know the U.N. is just down the street from my office, but how could that possibly be any fun?

No clients were injured in the creation, publication and execution of this hoax.


April 1st, 2012

Today is April Fool’s Day

Yeah, yeah, I know, it’s April Fool’s Day and you expect me to run a gag, simply because I’ve done one each of the last four years. But you know what? Fuhgeddaboudit. It isn’t easy pulling off a hoax when people are actively looking.  And with this being Sunday, even if I did run one, it wouldn’t get any traction.

So it’s time to retire and simply rehash my prior four gags for the few people looking in today:

I started in 2008 with a decent one about the Supreme Court granting cert in an existing fantasy baseball lawsuit. As I told it, many of the judges were in a Supreme Court fantasy league. Some recused themselves feeling there was a conflict while others did not. The subtext of the gag was the very real issue of when SCOTUS justices recuse themselves and the fact that those decisions have no review at all. That nabbed a bunch of people who didn’t see it coming.

I followed up in 2009  when I put this blog this blog up for sale on eBay. The subtext there was the wretched state of social media and constant use of blogs to sell, sell, sell.

In 2010 I did a fun gag that snared the New York Times when I announced (with considerable support from co-conspirator blogs) that I had  been appointed White House law blogger. I also learned something else; readers were actually checking in that morning to see what kind of stunt I would pull. How early did they check? Well, the ABA Journal ratted me out at 6:46 a.m. central time. I was lucky that the joke still had legs, thanks to all those that were in on the conspiracy and “confirming” my appointment (and that the Times didn’t find the ABA posting with a simple Google search).

But when you add in the considerable post-joke kerfuffle that took place about whether such jokes are ethical violations, that it was the subject of a Disciplinary Board comment from the Supreme Court of Pennsylvania, and then add that the joke landed in a New York Times mea culpa editorial,  it became clear to me that my days as an April Fool’s gagster were just about done. Too many people were watching.

Last year I was able to run just one more, by organizing a web ring of 23 blogs to laugh about how the Times was, incredibly, taken again. The joke was on the thousands of readers who — eagerly wanting it to be true — went running from blog to blog to find out exactly how the Times was punked. The Times wasn’t; those wanting to laugh at the Times for getting taken learned that the joke was on them.

I think most will agree that the time to hang up my jester’s hat has arrived. I won’t use this blog today for an April Fool’s gag. But fear not, someplace out there on the web there are hoaxsters and pranksters of all stripes with their digital whoopee cushions. And someplace, somewhere some folks will get gotten because they weren’t wary, or if the gag is really good enough, despite it. It just won’t be here.

My apologies if that is what you came looking for. If you’re looking for a legal chuckle, you can check out the legal disclaimer I’m in the midst of drafting it for my trail race. Yes, it is real, even if it still needs a few edits.


April 2nd, 2011

April Fool’s Day Deconstruction (A 23-Blog Conspiracy)

Is it April 2nd already?

It shouldn’t be legal. To have so much fun.

OK, so today is April 2nd and that means a deconstruction of the April Fool’s Day hoax on this blog, and as it happens, the blogs of 22 others.

I had one big problem in doing an April Fool’s joke, of course, that I discussed in the set-up for the posting: If people are looking at this site to see what stunt I will pull, based on my past April Fool’s Day conduct, how will I hoodwink anyone? Doesn’t a prank work best when it’s unexpected? Answer: Divert the readers to let the hoax play out elsewhere, and make sure the story is plausible.

The premise was simple. The New York Times got pranked a couple of times last year. And loads of people chuckled at the “Paper of Record” for being sloppy. So this time, I figured, let’s go after the chucklers; we’ll try to get those who most like to see others get got. We’ll just claim another Times fail, certainly plausible given the past, and see who chases the bait. It would be a prank about a prank.

And with that, a wild goose chase was born with one blog after another ostensibly providing the magic link to where readers could get their laugh at the expense of the Times. No one, of course,  actually had the goods since there were no goods to be had.  In all there were 15 bloggers feeding readers into a circle that contained eight blogs. All chasing a phantom punking.

I figured most people would realize they’d been hustled after three or four links because at that point plausibility has been substantially diminished. So the best way to prolong the ruse was to keep actual facts to a minimum, because actual facts could not only be cross-checked with a Google search, but worse,  could conflict with the “facts” in the next blog. So I asked my co-conspirators to use very few facts, much to the dismay of some very creative writers with implausible concepts — just to give a little bait to keep people hunting.

And it only took a couple hundred emails to get this going.  Some bloggers, of course, were too cowardly professional to play along and declined. I can now taunt them forever for having missed a good time. In private. Unless they tick me off. I’ve got a blog, you know, and I know how to use it.

The execution was choppy, but this was the plan: Everyone would post at 7 am sharp, New York time. And most did. We were either awake and at our keyboards, or had set up urls in advance along with an auto-post. This was critical in order to create a full circle.

But a couple of Texans, who shall remain nameless, messed up the time zone differences when they set their blogs to auto-post. And one blogger that was part of the planned nine-blog circle not only messed up his timing, but also mistakenly posted backwards to the blog leading into him. That meant a dead end. He was either playing an April Fool’s joke on me, or this was the clearest case of prankster malpractice the internet had ever seen.

In addition to that dead end, there were also blown urls that had been created in advance. And so, April Fool’s Day morning, there was a dizzying deluge of email with bloggers editing links to make it all work, as some folks went off to do that thing they call “work.” One blogger actually edited his outbound url using an iPhone while standing outside a courthouse, to bypass the dead end blogger and close the circle to eight.

All told, we had 23 blogs in on the game, which included law, medicine, gaming, and politics, as well as personal/quirky blogs. I had hoped to find a tech blog to add in, but never made a connection with anyone. And it would have been great to have had the Fail Blog involved — just think of all those readers that like to laugh at others chasing a phantom fail.

These were the eight inside the circle:

Turkewitz–> Simple Justice –> Patterico –> Ted Frank –> Popehat –> Dr. Wes –> Lemon Gloria –> Marc Randazza –> Turkewitz

And these were the 15 that fed readers via daisy chains into the vortex at various points, without whom this stunt wouldn’t have been nearly as successful:

Gamso –> Seddiq –> Tannebaum –> Bennett –> Frank

Movin’ Meat –> Suture for a Living –> Lemon Gloria

Grunt Doc –> Dr. Wes

Wise –> Barovick –> Crime and Federalism –> Popehat

Kill Ten Rats –> Frank

ABA Journal –> Simple Justice

Above the Law –> Popehat

Wendy & Jason –> Turkewitz

Windy Pundit –> Turkewitz

I hope I didn’t miss anyone, but we had late additions and a couple of late deletions and my head just about spun off its moorings.

Was it a success? You betcha, as we had many thousands of people chasing the phantom, just itching to see the Times get taken. How many were actually taken depends on your definition of gotcha, but I think anyone that clicked more than three links probably qualifies. Many, I assume, figured out early it was a prank but kept clicking out of amusement to see if there was treasure at the end of the rainbow, only to find the never-ending rainbow.

It’s worth noting that one media outlet was duped (or were they?) though that wasn’t the goal: The Village Voice. They did a round-up of April Fool’s media stories, debunking jokes and letting their readers know which ones were real or not (Did the Huffington Post Steal Their April Fool’s Day Joke? Plus More Media Gags!) Despite specifically looking to critique jokes and pranks, they got caught (?) by Scott Greenfield:

Today, almost every media operation in the world has already attempted or will soon attempt to make a joke at the expense of their readers, viewers, visitors, or customers. Most will actually fool very few, while even less will be funny…

Not a Joke: The New York Times got fooled by an April Fool’s Day story, just like last year. This one’s really good.

The Wall Street Journal wasn’t so hot on fact-checking either, when doing a story about this year’s April Fool’s Day hoaxes. They quoted and linked to last year’s punking of the Times to make fun of it:

Other Than That, the Story Was Accurate
“Note: an earlier version of this column had an item about a blog post by a personal-injury lawyer, Eric Turkewitz, announcing that he had been appointed the White House law blogger. Blogospheric chatter indicates a high likelihood that this post was an April Fool hoax. Mr. Turkewitz declined to give us a straight answer on this score, so, pending callback from the White House, we’ve taken the item down.”–New York Times website, April 1

When you check the date, fellas, you also have to remember the year. That sort of reminds me of commenters that make fun of spelling mistakes, while making their own.

And here’s an interesting bit about the visitors yesterday from the data I looked at: The lawfirm with the most people to visit was….wait for it….the Department of Justice. I know I speak for many in saying we sleep better knowing our tax dollars are well spent. And I would also like to welcome my visitors from the Supreme Court, Senate and White House.

The comments at many blogs were fun, as were the emails, and many happily conceded they’d been had. But the award for best comments goes to….Popehat. Really. Especially “JB” and “Scott Jacobs.” Instant classics.

Final note: As I type, the economy still stinks and we’re engaged in 2.5 wars. Those who read blogs such as this probably know more than their fair share of people suffering hardship. There is an earthquake/tsunami/nuclear disaster in Japan. So it’s probably healthy to take a moment out of the day to laugh at yourself and count your blessings. And on behalf of my co-conspirators, we were happy to help you get to that point.

Same time next year?

(No clients were hurt in the perpetration of this hoax.)


April 1st, 2011

NYT Gets Punked Again on April Fool’s Day (But not by me)

Oy. Again Gray Lady? It didn’t seem to take that long, though I guess that’s old media for you. The Times got suckered again on April Fool’s Day. And it was just before bed last night that I wrote:

But, fear not, someplace out there on the web there are hoaxsters and pranksters of all stripes, and someplace, somewhere some folks will get gotten either because they weren’t wary, or if the gag is good enough, despite it.

Despite being punked twice last year by April Fool’s gags, and despite even doing that editorial mea culpa on the subject, the New York Times seems to have been snared again. That’s what they get for putting up a paywall.

Scott Greenfield of Simple Justice fame has the link.