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No, Trump Didn't Argue That Protesters Have No Right To Protest or Violated His Rights

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Donald Trump is no friend of free speech. He promotes ignorance about the First Amendment and has a history of bogus censorious lawsuits.

It is not necessary to make things up to paint him as censorious and uninformed about free speech values.

Yet here we are again.

For the third time I return to Nwanguma v. Trump, a case pending in federal court in Kentucky. The plaintiffs, protesters at a March 1, 2016 rally in Louisville, claim that Trump incited his fans to assault them and eject them violently from the rally, and sued Trump and some of the allegedly violent fans. Previously I lawsplained that no, a federal judge didn't rule that Trump had incited violence, and no, it's very misleading to say that one of the allegedly violent rally-goers sued Trump for inciting him to violence.

What fresh hell now? We get this:

And this:

And, God help us, this:

So, what's really going on? Did Trump actually argue in court that people protesting him violate his First Amendment rights and that they have no right to protest him?

No.

This started when Trump lost a motion to dismiss the case. As I explained before, that ruling doesn't signify a finding that the plaintiffs will prove their case – it means that the plaintiffs successfully asserted facts in their complaint which, if proven true, could support a claim against Trump.

Last week Trump's lawyers filed a fairly unusual and creative motion. Part of the motion asked the judge to reconsider his denial of the motion to dismiss. Motions to reconsider are generally highly disfavored in federal court — it's very rare to win one unless you can show new law or new facts that you couldn't have presented before, because judges don't want to re-litigate and re-argue every point endlessly. But Trump's lawyers also request something much rarer — they want the court to permit an immediate appeal, through a process called certification.

Here's the way it works. Generally speaking, only final judicial decisions that end a case can be appealed. Denying a motion to dismiss doesn't end the case, so it can't be appealed. But a federal judge has the power to certify issues for an immediate appeal — called an interlocutory appeal — if the judge finds that there's a controlling legal question involved (that is, a legal question that may dispose of the case), there's grounds for disagreement about the issue, and resolving it may help resolve the case. Trump's motion — which you can read here — asks the federal judge to certify for interlocutory appeal (1) whether the First Amendment protects Trump's speech as a matter of law based on the allegations in the complaint, and (2) whether the First Amendment allows a claim for negligently inciting violence through speech.

It's in the course of that motion that Trump's lawyers make arguments now being misconstrued and misleadingly presented.

Trump's First Amendment argument depends, in part, on his (correct) assertion that freedom of association lets a politician control who is allowed to attend a private political rally:

At the threshold, the forum for this speech was a political campaign rally. Like any other private assembly to achieve ideological goals, political campaigns have a core First Amendment right to associate for the purpose of expressing a particular message, which necessarily includes the right to “exclu[de] . . . views [that] [a]re at odds with positions [the campaign] espouse[s].” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 580 (1995). Accordingly, when a campaign has “decided to exclude a message it d[oes] not like” from a campaign rally, “that is enough to invoke [the campaign’s] right as a private speaker to shape its expression” by excluding or expelling demonstrators who express contrary viewpoints. Id. at 574. Of course, protestors have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose. Indeed, forcing the “private organizers” of a political rally to accept everyone “who wish[es] to join in with some expressive demonstration of their own” would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573.

I added the highlight to that quote because it undercuts the spin being given to it. Trump's lawyers are saying "Trump can decide who is allowed to attend his private rally, and protesters have a right to protest him but not at his private rally."

That is the context for the following paragraph:

Here, the Plaintiffs obviously interfered with the Trump campaign’s First Amendment right to “choose the contents of [its] own message,” id., when they attended a Trump campaign rally and began vigorously expressing their disdain for Mr. Trump, including by “h[o]ld[ing] up a sign depicting [Mr.] Trump’s face on the body of a pig,” Compl. ¶ 44. Once that disruption occurred, Mr. Trump and the campaign had every right to expel the protestors from the event. Accordingly, Mr. Trump was not “inciting a riot” but was rather exercising a core First Amendment freedom when he said, “[G]et ’em out of here” and “Don’t hurt ’em.” Id. ¶¶ 32, 34. By holding to the contrary, this Court’s decision effectively transforms Mr. Trump’s protected political speech into an unlawful tortious act. At the very least, reasonable minds can differ as to whether that holding is correct as a matter of First Amendment law.

Note that Trump's lawyers said that protesters were interfering with his exercise of First Amendment rights, not violating his First Amendment rights.

So Trump's completely unremarkable arguments are these:

* Trump has a First Amendment right to speak;
* Trump has a First Amendment right to choose who is allowed at his private rallies;
* Protesters have a First Amendment right to speak, but not to speak at Trump's private rallies;
* It would violate Trump's First Amendment rights to force him to accept protesters at private rallies.

All of that is clearly correct. But it's being reported sloppily, misleadingly, and/or incompetently as "Trump says protesters violate his First Amendment rights" and "Trump says protesters have no right to protest" by people who either don't care about accuracy or are incapable of achieving it on this subject. The motion explicitly says the opposite of that.

Remember: read legal reporting with great skepticism.

Copyright 2016 by the named Popehat author.
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aranth
4 days ago
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Taking aim at annoying page jumps in Chrome

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Have you ever opened a link shared by a friend to an article you were eager to read, scrolled to the second paragraph, and found yourself suddenly back near the top of the page, as if everything had shifted beneath you?

These annoying page jumps typically happen when the website inserts an image or other content above the visible area, pushing down what’s on the screen. With the newest Chrome update, we’re introducing something called scroll anchoring, which locks the content you’re currently looking at to the screen, keeping you in the same spot so you can keep reading. Check out a side-by-side comparison, without and with scroll anchoring:

Scroll anchoring is one of our favorite kinds of features—those that shine when no one notices them. Today we’re preventing an average of almost three “jumps” per pageview, and we’re still getting better. If you’re a web developer or you’d like to learn more, see our technical guide to understand how it works and what it means for your website.

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aranth
17 days ago
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YES
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1 public comment
Ferret
17 days ago
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This is basically the pinnacle of civilization. It's all downhill from here, folks.

The Joy of Painting with ZALGO

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aranth
21 days ago
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Post-FCC Privacy Rules, Should You VPN?

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Many readers are understandably concerned about recent moves by the U.S. Congress that would roll back privacy rules barring broadband Internet service providers (ISPs) from sharing or selling customer browsing history, among other personal data. Some are concerned enough by this development that they’re looking at obfuscating all of their online browsing by paying for a subscription to a virtual private networking (VPN) service. This piece is intended to serve as a guidepost for those contemplating such a move.

vpnOn Tuesday, the House approved a Senate resolution to roll back data privacy regulations enacted late last year at the Federal Communications Commission (FCC) that would block ISPs from selling to advertisers information about where you go and what you do online. President Trump has signaled his intent to sign the bill (S.J. Res. 34) into law soon.

As shocking as this sounds, virtually nothing has changed about the privacy of the average American’s connection to the Internet as a result of this action by Congress, except perhaps a greater awareness that ISP customers don’t really have many privacy protections by default. The FCC rules hadn’t yet gone into effect, and traditional broadband providers successfully made the case to lawmakers that the new rules put them at a competitive disadvantage vis-a-vis purely Web-based rivals such as Facebook and Google.

Nevertheless, this hasn’t stopped news outlets from breathlessly urging concerned citizens to reclaim their privacy by turning to VPN providers. And VPN providers have certainly capitalized on the news. One quite large (and savvy) VPN provider even took out a full-page ad in the New York Times listing the names of the Republican senators who voted to repeal the still-dormant regulations.

I’m happy if this issue raises the general level of public awareness about privacy and the need for Internet users everywhere to take a more active role in preserving it. And VPNs can be a useful tool for protecting one’s privacy online. However, it’s important to understand the limitations of this technology, and to take the time to research providers before entrusting them with virtually all your browsing data — and possibly even compounding your privacy woes in the process.

In case any readers are unclear on the technology, in a nutshell VPNs rely on specialized software that you download and install on your computer. Some VPN providers will supply customers with their own custom brand of VPN software, while others may simply assign customers a set user credentials and allow users to connect to the service via open-source VPN software like OpenVPN.

Either way, the software creates an encrypted tunnel between your computer and the VPN provider, effectively blocking your ISP or anyone else on the network (aside from you and the VPN provider) from being able to tell which sites you are visiting or viewing the contents of your communications. A VPN service allows a customer in, say, New York City, to tunnel his traffic through one of several servers around the world, making it appear to any Web sites that his connection is coming from those servers, not from his ISP in New York.

If you just want a VPN provider that will keep your ISP from snooping on your everyday browsing, virtually any provider can do that for you. But if you care about choosing from among VPN providers with integrity and those that provide reliable, comprehensive, trustworthy and affordable offerings, you’re going to want to do your homework before making a selection. And there are plenty of factors to consider.

For better or worse, there are hundreds of VPN providers out there today. Simply searching the Web for “VPN” and “review” is hardly the best vetting approach, as a great many VPN companies offer “affiliate” programs that pay people a commission for each new customer they help sign up. I say this not to categorically discount VPN providers that offer affiliate programs, but more as a warning that such programs can skew search engine results in favor of larger providers.

That’s because affiliate programs often create a perverse incentive for unscrupulous marketers to do things like manufacture phony VPN reviews by the virtual truckload, reviews that are aimed at steering as many people as possible to signing up with the service and earning them commissions. In my admittedly limited experience, this seems to have the effect of funneling search results toward VPN providers which spend a lot of money marketing their offerings and paying for affiliate programs.

Also, good luck figuring out who owns and operates many of these companies. Again, from the admittedly few instances in which I’ve attempted to determine exactly who or what is at the helm of a specific VPN provider, I can say that this has not been a particularly fruitful endeavor.

My bar for choosing a VPN provider has more to do with selecting one that makes an effort to ensure its customers understand how to use the service securely and safely, and to manage their customers’ expectations about the limitations of using the service. Those include VPN companies that take the time to explain seemingly esoteric but important concepts, such as DNS and IPv6 leaks, and whether they keep any logs of customer activity. I also tend to put more stock in VPN providers that offer payment mechanisms which go beyond easily-traceable methods such as credit cards or PayPal, to offering more privacy-friendly payment options like Bitcoin (or even cash).

Many VPN providers claim they keep zero records of customer activity. However, this is almost always untrue if you take the time to read the fine print. Also, some VPN services can’t truthfully make this claim because they merely resell network services offered by third-parties. Providers that are honest and up-front about what information they collect and keep and for how long carry more weight in my book.

Most VPN providers will keep basic information about their customers, including any information supplied at the creation of the account, as well as the true Internet address of the customer and the times that customers connect and disconnect from the service. I’ve found that VPN providers which collect the minimum amount of information about their customers also tend to offer little or no customer support. This isn’t necessarily a bad thing, especially if you know what you’re doing and don’t need or want a lot of hand-holding. For my part, I would avoid any VPN provider which asks for personal information that isn’t required by the form of payment I choose.

Then there are more practical, day-to-day considerations that may have little to do with privacy and anonymity. For example, some VPN providers pay a great deal of attention to privacy and security, but may not offer a huge number of servers and locations to chose from. This can present issues for people who frequently watch streaming video services that are restricted for use in specific countries. Other VPN providers may offer an impressive range of countries and/or states to chose from, but do not provide fast enough speeds to reliably satisfy data-intensive applications, such as streaming video.

These are only some of the many factors that are important to weigh when selecting a VPN provider. I asked my favorite source for online privacy — the Electronic Frontier Foundation (EFF) — if they had any recommendations for VPN providers. Alas, their press folks told me the EFF has not yet sought to vet the claims made by various VPN companies. Instead, their media folks referred me to this site, which covers many of the concerns raised in this post in greater detail, and includes what appear to be fairly straightforward reviews and side-by-side comparisons of many popular VPN services.

For personal privacy reasons, I’m not interested in sharing the name of the VPN service that I’ve paid for and trusted for years. But I can say with some gratification that they are one of the highest rated (greens almost across the board) providers listed here.

A quick note about “free VPN” services. Just as with “free” services like Facebook and Gmail, it’s important to know that with free VPN services you probably aren’t so much the customer as the product. Operating a business like a VPN service takes considerable effort and cost, and it’s very likely that anyone operating a free VPN service is also somehow monetizing your use of their service in some way — probably in an way that may be at odds with your reason for using the service in the first place.

Alternatively, if you’re looking for a free option, consider using Tor instead. Short for “The Onion Router,” Tor takes your communications and bounces them through a series of layers or “relays” around the globe, encrypting your data at every hop. The practical and privacy limitations of Tor are explained rather succinctly in this story at How-to Geek, but many of the traditional concerns about Tor are mitigated by the technical limitations that ship with the current Tor Browser Bundle. For most users, the principal drawback of Tor versus paid VPN services is that Tor is likely to be far slower than your average VPN (although, to be fair Tor has gotten quite a bit faster in recent years).

Finally, from the read-my-mind department, I fell asleep last night ruminating over what a grass-roots effort to lawfully and publicly resist this move by Congress might look like, and briefly considered that someone could even set up a site that would offer to purchase the Internet browsing records of the top lawmakers who voted for repealing the FCC rules (should those records ever go on sale by the major broadband providers). Incredibly, I awoke this morning to an email from a reader about exactly such an experiment — searchinternethistory.com — which has raised more than $170,000 so far toward a $1 million goal via GoFundMe.

As cathartic as this effort may be, I can’t recommend supporting it financially. However, if you’re in a generous mood I would wholeheartedly recommend supporting groups like the EFF, which orchestrates efforts to educate lawmakers on important technology policy issues and — failing that — to derail and sometimes overturn bone-headed policy moves in Washington, D.C. that endanger our security and privacy. KrebsOnSecurity supports the EFF with four-figure donations each year, and I would encourage anyone with the means and interest to likewise support the work of this important organization.

Author’s note: On any given week, I probably remove a dozen or so comments from people who appear to be shilling for various VPN providers. Any comments to that effect on this post will be similarly deleted without hesitation or explanation.

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aranth
29 days ago
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Nintendo Switch game cartridges taste offensively bad, trust us

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Don’t do what we did. Please.

The Nintendo Switch is designed to be portable, so it doesn’t have a disc drive. Instead, its games come on cartridges, just like games for Nintendo’s handheld platforms stretching back to the original Game Boy. But there’s something different about Switch cartridges: They taste awful.

Over the past week, reviewers at various outlets have been gamely putting Switch cartridges in their mouths in the name of science and journalism. The investigations seem to have been inspired by Giant Bomb co-founder Jeff Gerstmann, who tweeted a public service announcement last week warning people about the hazards of putting your tongue on a Switch cartridge:

Gerstmann actually did that live on camera during Giant Bomb’s Feb. 24 Unprofessional Friday stream. While that series is available exclusively for Giant Bomb subscribers, a viewer captured a clip of the taste test and posted a GIF to Reddit that you can see below.

The reaction is almost immediate — Gerstmann puts the game in his mouth, and after about a second, his face turns sour and he quickly removes the cartridge.

We did our own testing, and can confirm Gerstmann’s instant analysis and advice: DO NOT put Nintendo Switch game cards in your mouth. For one thing, they may be small enough to pose a choking hazard. But regardless of whether the cartridge gets stuck in your throat, its awful taste will certainly linger on your tongue.

First, let’s get through some older game cartridges. Intrepid reporter Julia Alexander tried tasting cartridges from the Nintendo DS, Nintendo 3DS and PlayStation Vita. None of them had any particular taste. (We should note that we were unable to try cartridges that were fresh out of the box for these older platforms.)

After all that, Julia went for it with a copy of Just Dance 2017, a Switch launch title. Here is how she described the sensation:

It doesn’t hit you at first. It tastes just as plain and feels just as slippery as the other three cartridges. In just a few milliseconds, though, a very sour taste invades your taste buds. It smells bad; you can feel it in your throat. It’s revolting, and the only thing I can equate it to is when you’re at the dentist and a drop of sour cleaning material hits the back of your tongue. Your entire face feels it. And the taste lingers for about 20 seconds.

People have speculated that the manufacturing process for Switch cartridges involves coating them in a layer of foul-tasting film, so as to discourage people from, well, putting the cartridges in their mouths. (Why do you think Play-Doh is so bitter and salty?) We’ve reached out to Nintendo to ask why Switch cartridges taste so bad, and we’ll update this article with any information we receive.

In the meantime, we’ll be washing out our mouths with soap to try and get rid of this terrible taste. For more on the Switch, you can read our review.

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aranth
58 days ago
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We’ve reached out to Nintendo to ask why Switch cartridges taste so bad,
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The politics of funding absurd-sounding science

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Enlarge / You don't want to know what this guy's been evolving. (credit: Washington Fish and Wildlife)

BOSTON—"The national debt is a big structural problem," former Representative Brian Baird told his audience at the meeting of the American Association for the Advancement of Science. And that, according to Baird, is one reason scientific research comes under fire. “If you can’t solve something big," he went on, "distract people by attacking something small.” All too often, that something small has been scientific research.

Two of the researchers who found their work under fire were on hand to describe the experience and talk a bit about the lessons they learned.

Does that treadmill look expensive to you?

One of them was David Scholnick of Pacific University who produced the video above, showing a shrimp going for a run on an underwater treadmill. It's hard to tell just how many people have ended up viewing the video, given that it has been cloned, set to various music, and appeared in news reports that have also made their way onto YouTube—it's fair to say that it's quite popular. Scholnick wasn't looking for that popularity. He had just put the video up on his faculty webpage; someone else grabbed it and stuck it on YouTube.

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aranth
63 days ago
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