Wikipedia talk:Wikipedia Signpost/2019-08-30/Op-Ed

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• Perhaps an IP range block would have been in order for Australia targeting the article in question? I am presuming that an article specific block is technically possible. This would need to be coupled with a registered user block where those users declare their residency in Australia. Again, presuming this is technically possible. If possible, then this could be a general approach to specific information blockade to comply with legal restrictions which are geographically defined. --User:Ceyockey (talk to me) 00:05, 31 August 2019 (UTC)

  @Ceyockey: Neither is this technically possible at the moment (mw:Manual:Preventing_access#Restrict_viewing, phab:T230668) nor should Wikipedia ever comply with censorship orders that it doesn't have to in the United States. ~ ToBeFree (talk) 01:18, 31 August 2019 (UTC)

  I agree. One of the advantages of Wikipedia being hosted in the US is that the United States has an extremely broad right to free speech. -- Rockstonetalk to me! 03:19, 31 August 2019 (UTC)

• Interesting. --Mark Miller (talk) 00:20, 31 August 2019 (UTC)
• Regarding, "given the recent behaviour of Facebook and Twitter," as someone who has edited on this in the past three months, Twitter is nothing compared to what YouTube's algorithm was doing. Recently it has apparently been fundamentally altered, and seems somewhat better but still has way more intentional far-right radicalization than Twitter. EllenCT (talk) 02:30, 31 August 2019 (UTC)
• More dangerous than "an impending crackdown" in terms of censorship is a concerted effort to push disinformation into Wikipedia. Censorship always has a clear source. Disinformation, not so much. — Neonorange (Phil) 02:59, 31 August 2019 (UTC)

• Censorship only has an obvious source if it fails. If it succeeds, you'll never know it happened at all. Even if it results in fewer people knowing about something than otherwise would have, it can be stated to have successfully suppressed knowledge of the censorship occurring at all. (Hence, probably, why the judge was irritated about the "Censored" page in the newspaper—it wasn't just that the judge wanted the censorship to occur, but for people not to know it was occurring. After all, a completely black page certainly did not publish any details the court order prohibited.) Seraphimblade ^{Talk to me} 04:42, 31 August 2019 (UTC)

• I consider censorship as flowing from the state. I live in the U.S., though in the past I have worked many countries, including Poland during the suppression of Solidarność. Disinformation I think is much more dangerous—see its use in the U.S., India, and Britain... to divide and demonize. Corrupt information is more dangerous than no data. Anyway, I agree with your statement about censorship—in trying for a succinct statement, I assumed a single source for censorship, and perhaps oversimplified. — Neonorange (Phil) 05:41, 31 August 2019 (UTC)

"Using the services in a manner that is inconsistent with applicable law" is a violation of our terms of use. This presupposes that Australian courts have anything to say about what non-Australian contributors do on a US-hosted server. They do not at all, IMHO. ☆ Bri (talk) 05:11, 31 August 2019 (UTC)

The notion that none of the Wikipedians who made edits were Australians is not likely to stand up to any scrutiny. Hawkeye7 (discuss) 06:33, 31 August 2019 (UTC)

That's great, but what's Australia going to do about it, since Wikipedia is hosted here in the US? -- Rockstonetalk to me! 06:48, 31 August 2019 (UTC)

Publication of a web page is deemed to occur at the place of comprehension, rather than the place where the data is stored. If a page is viewed in Australia (as per a number of other jurisdictions), it can be considered to have been published in Australia in regard to Australian law, even if it is hosted in the US. - Bilby (talk) 06:50, 31 August 2019 (UTC)

My understanding of what could happen (based on enforcement of foreign judgments) is that an Australian court could fine Wikimedia, and then take them to court in California to recover the money. Hawkeye7 (discuss) 08:48, 31 August 2019 (UTC)

Hawkeye7, I don't know of any particular case law on the matter (though now I'm rather interested, and if I have time today I might take a look), but I'd note the SPEECH Act in particular, which was passed particularly to forbid US courts from enforcing foreign libel judgments. Foreign judgments are not enforced if they are "repugnant" to the public policy of the United States, and I think it would be pretty repugnant for a foreign court to be able to use the US courts to restrict Americans' free speech and free press rights in a way a US court or law would be forbidden to do. Arguably, since those are constitutional rights, the court would even be prohibited from enforcing those foreign judgments, since all judgments by US courts are subject to constitutional review no matter why they were originally made. If a ruling by a US court would abrogate such a right, it will be overturned. Basically, courts can't end-run the First Amendment like that. (And before anyone pulls out the "But they had to specifically prohibit libel enforcement by statute!", yes, but libel is explicitly not protected under the First Amendment. Reporting on crime and criminals unquestionably is.) Seraphimblade ^{Talk to me} 11:41, 31 August 2019 (UTC)

Note that the WMF also has assets outside the United States. According to m:Wikimedia servers, there are servers in the Netherlands and Singapore that you could try to seize by suing in the Netherlands or Singapore. You would have to look at the laws of all countries where the WMF has assets in case one of those would recognise the Australian court ruling. Also, the WMF might be prevented from ever having assets in Australia unless the WMF pays the fines. --Stefan2 (talk) 13:49, 31 August 2019 (UTC)

If Australia has laws requiring suppression of facts, I would certainly say it would be no loss for the WMF to be prevented from having assets there to begin with. Seraphimblade ^{Talk to me} 14:29, 31 August 2019 (UTC)

What exactly is applicable law? Is that the laws of all countries in the entire world? Let's say, for example, that some "random" country were to decide that you can't write about the Fourth of June Incident, would we then be prevented from writing articles about that subject due to the vague wording applicable law in the terms of use? --Stefan2 (talk) 13:49, 31 August 2019 (UTC)

"Applicable" is a combination of "enforceable" – i.e. United States law – and "voluntarily upheld" foreign law that the WMF chooses to abide by, including judicial decrees. Given the repugnancy of the Australian gag order to U.S. First Amendment rights, noted above by Seraphimblade and others, I highly doubt the WMF would voluntarily abide by anything related to it. Given their public position on Turkey's censorship of Wikipedia, it would be a strange thing indeed if they did so. ☆ Bri (talk) 15:08, 31 August 2019 (UTC)

• Does anyone think there's little future for courts in making such suppression orders? And that the practice might simply peter out because it's becoming ineffective and impractical? Tony (talk) 11:55, 31 August 2019 (UTC)

• Tony1, actually the Singpost article cited an article asking exactly that question. It basically raised the concern that when a court says "I demand that the tide not come in!", the court is lowering respect for itself by making a demand it can't ever actually enforce. (And of course, in this case, the restriction actually resulted in Streisanding, so there's that concern too.) Basically, they're going to have to come up with other ways of ensuring a fair trial besides censorship. Seraphimblade ^{Talk to me} 14:49, 31 August 2019 (UTC)

• WP:IGNOREALLRULES. No physical courts can or should control the digital environment. Cardinal Pell is a child molester, and let this be screamed from the rooftops. –♠Vami_IV†♠ 19:23, 31 August 2019 (UTC)

• Well, Vami IV, I'm not sure I would agree that no court should control the digital environment in any way whatsoever. If you're trying to use the digital environment to hire someone to kill me, I would rather prefer that law enforcement be able to stop you from doing that. But certainly simple statements of fact should not be censored, whether or not they are convenient for any given government. Seraphimblade ^{Talk to me} 20:22, 31 August 2019 (UTC)

The problem is that "screaming from the rooftops" is what may cause a mistrial to be declared, potentially allowing such people to walk. The supression orders are generally used to ensure that the jury trial is fair, rather than to protect the accused - if media coverage prevents a fair jury trial the accused may be deemed to be unable to recieve one, which may affect the outcome. Bilby (talk) 08:23, 1 September 2019 (UTC)

• @Vami IV: - Assuming that you're pro fair trial, but that you think the internet should no (or very limited) free speech limitations, how would you ensure accused receive fair trials in similar (but potentially less clear-cut) situations? Nosebagbear (talk) 15:27, 2 September 2019 (UTC)

Retracting this. I was just in a pique at more government-led fuckery with Wikipedia and wanted to scream about it. –♠Vami_IV†♠ 15:53, 2 September 2019 (UTC)

• Someone created a special category just for Pell, Category:Cardinals convicted of sexual abuse. Hawkeye7 (discuss) 22:19, 31 August 2019 (UTC)

• I made a discussion proposal. Not really sure it's worth keeping a category of just one person. -- Rockstonetalk to me! 23:16, 31 August 2019 (UTC)

• I'm sure there will be more added over time.--Auric talk 11:12, 6 September 2019 (UTC)

Thanks for an interesting topic! I'd suggest a category for Category:Wikipedia article subject to censorship and banner template. Banner could be used for articles currently affected, and category, for articles affected in the past. --_{Piotr Konieczny aka Prokonsul Piotrus| reply here} 02:56, 1 September 2019 (UTC)

• Does another country have the right to impose their legal standards on an entirely American entity? Answer: No.

American sovereignty is impinged when another country, in this case, Australia, dictates what an American entity can and cannot publish. The fact that Australia does not have the same free speech protections as America does not afford them the right to issue, let alone enforce restrictions on content on American servers with an American non-profit. The default position (albeit from an American perspective) is freedom of speech, with limitations meted out cautiously and with great consideration, not merely as a matter of convenience or even offense. That isn't the case here. Their understandable concerns of finding an untainted jury should be addressed in voir dire, and sequestering the chosen jury, as is done in American courts when necessary.

And what kind of precedent does such censorship set? While I hate the term slippery slope, it does fit here. What if Pakistan doesn't like articles about Al Qaeda? What if Saudi Arabia doesn't like articles about their ruling family killing American journalists in Turkey? And is the right to censorship reciprocal? Does America get to rule and dictate what can and cannot be disseminated in other countries on their servers? Positively Pandy (talk) 16:18, 2 September 2019 (UTC)

@Positively Pandy: Yes, other countries do have the right to impose their legal standards on an entirely American entity. If you do not believe me, go read the GDPR article. Poveglia (talk) 07:31, 8 September 2019 (UTC)

• This is no different from censorship of Wikipedia in China or Turkey: It is not Wikipedia's responsibility to prevent access or editing from those countries, regardless of what their governments might say, and we don't self-censor in order to have blocks lifted. Should we also consider rangeblocking all of China to prevent any illegal activity that may slip through? –dlthewave ☎ 18:48, 2 September 2019 (UTC)

• @Dlthewave: Ehm, this was done to ensure a fair trial. Turkey and China have a lot of censorship for other reasons... The situation is completely different and not even comparable. Poveglia (talk) 07:36, 8 September 2019 (UTC)

• The goal of the censorship, to ensure a fair trial, is one that Wikipedia/Wikimedia should certainly be respecting. The method of attempting to achieve that goal though is obviously not fit for purpose in the present era (regardless of whether one supports or opposes it). One solution might be for the court to not release the verdict (regardless of what it was), even to the defendant, until all linked trials are complete, at which point all the verdicts are delivered simultaneously. In a case local to me, the names of five (of about 12) people identified in a report into corrupt activities by a local council may not be published until 5 September. The goal of this is to ensure that the people concerned and, particularly, their families (who to my knowledge are not implicated in any way) are all aware of, and prepared for, the significant media, etc. interest that will result from publication. Especially as there have been allegations of harassment and intimidation of witnesses in the case, this is the sort of thing that Wikipedia should be respecting even if it is technically censorship. Thryduulf (talk) 19:42, 2 September 2019 (UTC)
  • Dear God, no we shouldn't. Now, of course, if Australia's courts decide not to report verdicts at all, and therefore we have no reliable source material on what that verdict was, then that's simply a lack of verifiability. (We could, of course, still note that the trial took place and some verdict was reached, unless even that is successfully kept secret.) But if it becomes known, we should ensure that, if it would constitute due weight, it finds its way in as soon as reliable sources verify it. It is no more our job to cooperate with Australian censorship than it is to cooperate with Chinese or Turkish censorship, and we routinely refuse to do that. We shouldn't be playing favorites. Seraphimblade ^{Talk to me} 03:27, 3 September 2019 (UTC)
  • The hypothetical you pose is so open to prosecutorial and other governmentorial abuse that the goal of a fair trial can not be served—for the defendants nor the society. Delaying verdict release is no better. Wikipedia is neither a society nor a sovereign state with a government. — Neonorange (Phil) 04:02, 3 September 2019 (UTC)
  • "One solution might be for the court to not release the verdict (regardless of what it was), even to the defendant, until all linked trials are complete, at which point all the verdicts are delivered simultaneously."—It would be a denial of natural justice (justice must be seen to be done). Tony (talk) 07:53, 3 September 2019 (UTC)
  • This is a more innovative idea than the one that has actually been floated, which is the abolition of jury trails in such cases (or altogether). Hawkeye7 (discuss) 19:37, 3 September 2019 (UTC)
    • @Hawkeye7: I didn't dare to mention that; but now that you have, I can say that I fully support the idea. If the cost of retaining the jury option is this unworkable ban on reportage, get rid of it altogether. There are other reasons, too, for abolishing juries in this increasingly technical age. Tony (talk) 23:49, 3 September 2019 (UTC)
• cardinals are not high-ranking bishops. It’s not even necessary to be a bishop first. https://catholicexchange.com/bishops-archbishops-and-cardinals ~TPW 10:19, 3 September 2019 (UTC)
  • Maybe the author should have said "Pell is a cardinal, and formerly one of the highest-ranking bishops in the church"? That's what I inferred when I was proofreading it. - Bri.public (talk) 17:00, 3 September 2019 (UTC)

    That was indeed what was meant. Pell was only removed from the Council of Cardinal Advisers a day after the conviction (but without mentioning why), so he was at the time. Hawkeye7 (discuss) 19:37, 3 September 2019 (UTC)

• I am the editor who initiated the discussion on the WikiProject Australia talk page described by the Op-Ed article as "weird". The reason the discussion was "weird" was, of course, that at the time the discussion took place, the gag order clearly applied, at the very least, to Australian editors of Wikipedia. I now have the following brief comments about the Op-Ed and the comments above. First, the gag order was made solely for the purpose of ensuring that Cardinal Pell would have a fair trial of the further serious charges against him that were then still pending. There is a strong public interest that every person charged with a serious offence have a fair trial of the relevant charge. In the United States, that public interest is reflected in the Sixth Amendment, and in the Due Process Clause in the Fourteenth Amendment. Internationally, the public interest is recognised by Article 10 of the Universal Declaration of Human Rights. Secondly, a number of the comments above appear to be based on the assumption that the First Amendment would prevent any US court from making any similar gag order, and from enforcing any foreign judgment based on any violation of any similar gag order. I am not convinced that that assumption is correct. On the contrary, the outcome in the US Supreme Court case of Sheppard v. Maxwell (1966) strongly suggests that the assumption is wrong (one of the comments above refers to the SPEECH Act, but that Act applies only to libel verdicts, and the imposition of a fine for contempt of a gag order would not be a libel verdict.) Thirdly, I think that much of the media reporting, both in and outside Australia, on the gag order in this case was self serving and inappropriate. Similar observations apply to some of the comments above. As I have already pointed out, the gag order was made solely on the basis of the strong public interest that Cardinal Pell, like anyone else, receive a fair trial of the charges against him that were then still pending. In cases like this, the media is fond of rabbiting on about freedom of speech, but anyone who knows anything about that topic will also know that freedom of speech cannot be, and is not, absolute, even in the United States. To make parallels between the gag order in this case and, eg, censorship of Wikipedia in China and Turkey is, frankly, complete nonsense (and also an insult to Australia and its robust system of justice). Finally, I think the Wikimedia Foundation (WMF) should have a procedure for dealing with any future gag orders like this one. In this case, the WMF failed to comply with an order of a court in a liberal democracy that, as I have made clear, was made solely for a strong public purpose that, at least in my view, should be respected in every liberal democracy, including the United States, and by any reputable NGO, including the WMF. Bahnfrend (talk) 07:10, 4 September 2019 (UTC)

Bahnfrend, I actually went and read the full decision from Sheppard v. Maxwell (and I was the one who referred to the SPEECH Act, but I also went into detail why other such restrictions would also be prohibited under US law, so you quite mischaracterized and took out of context what I said). Did you actually read the Supreme Court decision? In it, they do list some pretty shocking things, such as Sheppard's chief counsel being "forcibly removed" from proceedings by a participant, and media being allowed so close to the defendant in the courtroom that he could not privately confer with his attorney, as well as the contact information for potential jurors being publicly released prior to the trial, allowing people to contact and harass them. Obviously, those things kept Sheppard from having anything that could be in any way considered a fair trial, and the Supreme Court was correct in its finding that he did not receive one. Such practices are no longer allowed in the US. But if you read section (c) of paragraph 1 in the holdings of the actual SCOTUS opinion ([1]), you'll notice that while the Supreme Court states several things the trial court should have done and failed to do, issuing a blanket gag order on nationwide media was not one of those recommendations. Presumably, the SCOTUS did not consider such a practice to be an acceptable one. In the US, prior restraint is considered to almost automatically be unconstitutional. The WMF should not enforce any foreign censorship laws or orders, period. I'm sure Chinese or Turkish censors will also tell you that their motives are good and they just want to help, and I suspect that they actually believe that. Almost no one is a cackling villain intent on harm. I suspect they genuinely believe they're doing a good thing, as does the Australian judge issuing similar orders. But censorship still is inherently harmful. When people are prohibited to know facts, they cannot make informed decisions. Wikipedia, and Wikimedia, should never assist in the suppression of verifiable and truthful information, even if that information is inconvenient to someone. Seraphimblade ^{Talk to me} 15:38, 4 September 2019 (UTC)

As I noted in United States v. Progressive, Inc., prior restraint is not unconstitutional in the United States, only in certain cases. The World Press Freedom Index maintained by Reporters Without Borders rates Australia at 21st and the United States at 48th. [2] Both could do more to improve their ratings. Hawkeye7 (discuss) 00:39, 5 September 2019 (UTC)

Seraphimblade, I agree with Hawkeye7. The Wikipedia article on Nebraska Press Ass'n v. Stuart (1976) says that the Supreme Court decided in that case that "... it was inappropriate to bar media reporting on a criminal case prior to the trial itself, except in matters where a "clear and present danger" existed that would impede the process of a fair trial." [my emphasis] In the present case, there was a clear and present danger that media reporting on Cardinal Pell's convictions would impede the process of a fair trial of the then pending further charges against him. Under those circumstances, the restriction imposed by the gag order cannot be said to have been inherently harmful. As I indicated in my previous post, the right to a fair trial is recognised by the Universal Declaration of Human Rights, and the trial judge's gag order must be viewed in that context, both in Australia and elsewhere, including the United States. Bahnfrend (talk) 01:47, 5 September 2019 (UTC)

As to US v. Progressive, as brought up by Hawkeye7, I'd actually thought about bringing that one up myself. If you read the opinions and history there, several judges said that cases of nuclear secrets are about the only place they'd even consider upholding prior restraints—and at the end of the day, those restraints were even overturned there, and Progressive was allowed to publish its story. So far as the example by Bahnfrend, of Nebraska Press Ass'n v. Stuart, the courts noted that there were other measures available to ensure a fair trial, such as careful jury questioning to ensure that jurors can and will remain impartial. Presumably, Australian courts are capable of doing that as well. Both of those are cases where prior restraint was considered and rejected by US courts, and one was specifically one with implications on the right of fair trial. US courts are generally highly allergic to prior restraint or censorship of any kind, and that's especially true when it comes to censorship regarding political or legal processes. The right of the public to know what government actions are being taken and to discuss them or disagree with them is considered core political speech, and that receives the absolute highest degree of protection. And the right to do so in a timely way when protest might be effective, rather than after the moment of controversy has passed, is always considered a core part of that right. Or basically, don't expect US cooperation with Australian gag orders. Seraphimblade ^{Talk to me} 05:21, 5 September 2019 (UTC)

US v. Progressive is hardly a useful precedent. The case was in a first instance District Court, not the Supreme Court, and was never finally decided, because eventually the government dropped its claim. As for Nebraska Press, none of the alternatives suggested in that case would have been effective in the present case. Cardinal Pell was not a relative unknown being prosecuted in a minor court in a small town, as in that case. On the contrary, he is very well known in Victoria, nationally, and internationally, as one of the most powerful figures in the Roman Catholic Church, his trial was being covered by international media, and he was being prosecuted against the background of very heated controversy, in Australia and in many other countries, over a long history of persistent child abuse by Catholic clergy worldwide. Bahnfrend (talk) 06:00, 5 September 2019 (UTC)

The United States has a written constitution. This constitution has been expanded by amendments. The first ten amendments are known as the United States Bill of Rights. The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Australia seems to lack such constitutional guarantees and the Pell gag order has no force under the U.S. Constitution. — Neonorange (Phil) 07:01, 5 September 2019 (UTC)

The US case law does not support your assertion about the US Constitution. As the Wikipedia article about the Sixth Amendment points out, the Supreme Court ruled, in Sheppard v. Maxwell (discussed above), "... that the right to a public trial is not absolute. In cases where excess publicity would serve to undermine the defendant's right to due process, limitations can be put on public access to the proceedings." Bahnfrend (talk) 07:07, 5 September 2019 (UTC)

Alright, we can go back and forth all day long about hypotheticals. Here's a challenge for something concrete: Find me one case where the US Supreme Court upheld a total ban on media publishing anything. Anything at all. Not even just something trial related. Find one case where SCOTUS allowed the government to issue a media ban. Here's a hint: It isn't even allowed in cases of "national security". Glenn Greenwald, before publishing the Snowden leaks, told the State Department what he knew and was planning on publishing, so that they could tell him if certain details might immediately endanger someone, and so that if his publication did endanger them, they could try to get them out. But he knew full well that State couldn't keep him from publishing, even though he was about to publish classified material. That's how strong freedom of speech and press is in the US. So trying to "read between the lines" of some past cases doesn't undermine that; it was upheld far more recently than that. State didn't even try to go to court to keep Greenwald from publishing, because they knew they'd just get slapped down and look foolish for doing it. Seraphimblade ^{Talk to me} 07:23, 5 September 2019 (UTC)

(edit conflict) Yet the contents of the writ from the U.S. Supreme Court differs from your statements (one reason Wikipedia is not considered a reliable source). The writ speaks to judicial misconduct—failure to apply available remedies to pretrial publicity and courtroom conduct. Two more points: you bring up a case from 1966, fifty-three years ago. Pretrial publicity in the U.S. differs greatly now. In addition, the entire set of hearings by higher courts concern the original defendant.

As Seraphimbladesuggests, you find a reliable source that supports your contention (guessing here) that Australian legal custom supports suppression of Australian trial results in other countries. And I will, as Seraphimblade suggests, look for an applicable U.S. ruling.

— Neonorange (Phil) 07:54, 5 September 2019 (UTC)

In case someone is wondering, Australia does have a written constitution, and Section 80 says:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Hawkeye7 (discuss) 08:59, 5 September 2019 (UTC)

There are two countervailing reasons for wanting the fair trial these gag orders (and other sub-judice measures) are meant to support. Firstly it it in the interest of justice for the defendant. Secondly if it can be shown that a fair trial cannot be held, or was not held, the defendant can escape justice, so it is in the interest of the prosecution too. A similar case in the UK recently involving a grooming gang, resulted in the imprisonment of someone reporting on it. All the best: Rich Farmbrough, 14:12, 16 September 2019 (UTC).

^^What Rich said, and while still looking at the bigger picture, we actually do have PAGs that cover what we can/cannot include that requires strict adherence to our core content policies. Along that same line I ask, what benefit does free speech serve if it becomes the catalyst for a trend to ban WP in other countries? WP is not a tool for SJW, it's an encyclopedia and we don't encounter problems when we accurately include the final results of legal cases in an encyclopedic article after the cases have been finalized and RS have all the facts. Jumping the gun is a problem we frequently encounter in AP2 and it appears to be spreading to different topics pedia-wide. WP:BREAKINGNEWS, WP:NOTNEWS, WP:NEWSORG, WP:BLP, WP:RS, WP:NOR, and on and on all come to mind. ^{Just exercising free speech here. Atsme} _Talk 📧 15:26, 24 September 2019 (UTC)