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92

L.A. Court Prohibits Center for Medical Progress From Publishing Some Undercover Materials About Abortion

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My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

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25

The Man We Need: Kickass J. Biteme, Presidential Candidate

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I'd like you to meet Kickass J. Biteme, candidate for President of these United States.

Mr. Biteme — or Kick, as he prefers to be called — says what he thinks. And what he usually thinks is that American politics is petty, venal bullshit.

Kickass tells it like it is. He calls out the media for a pack of smug, entitled scribblers every day. He knows how we can deal with America's enemies: blow them right the fuck up, instanter. He kicks over the trough of slops from which Congress feeds and mocks their pretensions. He knows how to cure ever social ill, how to meet every challenge: do something fast and muscular, and stop talking. He has no truck with carefully crafted campaign statements.

"But why do I need Kickass Biteme?" you might ask. "Trump's my man."

Well, sure. Trump's got a decent shot at winning your id's vote. Trump's sure of himself. Trump's loud. But Trump's a real person, and therein lies his flaw. The realities of his past disrupt the sweet song of our viscera. Kickass Biteme's got no baggage. When Kick rants about government for sale, we won't be troubled by reminders that he's been a frequent buyer. When Kick vents against the target of the day, we won't have to remember that he was sucking up to them a moon's turn ago when it suited his purposes. When Kick blasts manufacturers for sending jobs overseas, nobody's going to be handing around polos with his vulgar insignia made by Laotian eight-year-olds. When Kick cuts a sneering interviewer off at the knees, we can be confident that it's robust American moral vigor, not just the latest thread in a tired pattern of childish petulance. Kick is pure. Kick isn't a poseur.

Since the ballot doesn't (yet) have a box for "none of the above," Kick is the word and the way — Kick is the guy we back to say "not a single one of you lying narcissistic motherfuckers deserves anything more than a boot in the ass." Kick is the way we ask "why should we pretend be happy that it's time to choose between the clap and a crowbar to the nuts again?" Kick's how we express our outrage at the naked emperor, at the sordid, venal pantomime of American politics — without the cognitive dissonance of endorsing someone who is, themselves, clearly full of shit, someone who is just clever and cynical enough to see our disgust as a distinct voting bloc.

Vote Kick in 2016. Accept no imitations.

43

Top Seven Things I Like About Internet Shame Mobs

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7) Initial news reports are always completely accurate, so we know we've got the right guy.

6) Initial news reports are always full of nuance, so we know that we understand the situation and can distinguish sarcasm from seriousness, and being nearby from being the active participant.

5) Internet shame mobs weigh the evidence carefully and deliberately before attacking, so they only happen to people who deserve them.

4) Internet shame mobs use the rule of law and due process, so when they occur by accident or to the wrong person it's easy for them to make amends and restore reputations, jobs, and friendships.

3) Internet shame mobs always make sure that the punishment is proportional to the crime.

2) Every member of an internet shame mob is without sin, so any one of them is morally just in throwing the first stone.

1) Once the internet shame mob has done its job, the button will be be offered to someone whom you don't know.

39

Lawsplainer: Did Gawker Aid and Abet Extortion? Nah.

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tl;dr: nah.

Last week Gawker Media published an unusually vile story about an escort's apparent attempt to blackmail a married entertainment executive. In just one post, Gawker outed a man for an alleged same-sex encounter and acted as the willing instrument of blackmail.

Many Internet Lawyers have suggested that Gawker committed extortion, or acted as accessory after the fact to extortion, and that its writers may be criminally liable.

Are they?

Answer: no, probably not.

Assume For the Moment They Aren't Just Credulous Hacks

Let's set aside for the moment the distinct possibility that the whole incident is the invention of an unbalanced conspiracy theorist who duped Gawker through the intricate method of saying something scandalous that reinforced their worldviews.

Let's also assume, for the sake of argument, that the escort's communications to the victim constituted extortion: that at some point he said something like "use your influence to help me with my legal problem or I will reveal to the media that you sought to hire me for sex." Gawker's post containing some of the alleged communications is down, and we can hardly trust Gawker to have reported them completely or accurately.

Did Gawker Commit Extortion? No.

Title 18, United States Code, section 875(d) makes extortion a felony:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Many courts have defined "other thing of value" broadly enough that it can probably include the victim's use of his influence to assist the extortionist in a legal matter.1

The escort may have violated this statute, but Gawker didn't. So far as we know, Gawker and its writers didn't demand anything of value from the victim. Rather, once the extortionist came to them, they printed his story. They carried out the course of action threatened by the extortionist, but they didn't make the threat or demand the thing of value themselves.

Was Gawker an Accessory after the Fact? No.

Title 18, United States Code, section 3 criminalizes being an accessory after the fact. However, that status is narrowly defined to helping people escape:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Gawker didn't do that. If anything, publishing the extortionist's story made it more likely he'd be caught.

Did Gawker Conspire To Commit Extortion? No.

I don't think Gawker conspired to commit extortion, either. The elements of federal conspiracy are "1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense." But here the unlawful objective is demanding something of value (an exercise of influence) in exchange for silence. There's no indication that Gawker did that or agreed to it. If Gawker had said "unless you help this guy, we'll publish," that would be conspiracy to commit extortion. But what Gawker did instead was publish the threatened embarrassing information. There's no indication that they attempted to help the extortionist get anything from the victim.

Did Gawker Aid and Abet Extortion? No.

Someone can also be guilty of extortion if they aid or abet it under Title 18, United States Code, Section 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The elements of aiding and abetting are:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

That's not what Gawker did. Gawker didn't intend to help the extortionist get something of value from the victim in exchange for silence. That's the opposite of what Gawker wanted — a lurid story to draw clicks. Gawker lacked specific intent to extort, so didn't aid and abet extortion.

There Oughta Be A Law

You could imagine a law that, like a prohibition of receiving stolen property, makes it illegal to publish embarrassing facts to help an extortionist carry out their threat. But that law would probably run afoul of the First Amendment, like any law that ascribes to a publisher of information the liability of their source.

Gawker and its writers probably didn't violate federal law.2 Whether they have civil liability is a different (and potentially more complicated) question. And, of course, they have moral liability: they're vermin.

26

Living To Make A Difference

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I was over 40 the first time something I wrote was published. The first thing I did was send an email to my high-school English teacher, Kathi Condell.

Ms. Condell — that's how I continue to think of her, even after she married again and demanded that I call her Kathi — taught several of my literature and writing classes. That was 30 years ago now. Her lessons remain. I remember them when I think about what I read and when I consider how and what to write.

Kathi Condell had a gift for connecting with teens. She was supportive without being indulgent, and age-appropriate without being condescending. She had high expectations, and conveyed a quiet confidence that those expectations were reasonable and achievable.

More than that, she taught literature and writing not as means, but as ends. Everyone knew you had to write well and get good grades to get into a good college, and get a good job, and so forth. Everyone understood the grind, particularly at a school like mine. But Kathi Condell believed we should be well-read because we loved reading, that we should reflect on what we read because it was meaningful and pleasurable, and that we should treat writing as a form of artistic expression, not merely a tool. She helped teach me that writing could be useful and expressive at the same time.

I wanted to be a lawyer from a very young age. She was always respectful of that goal, but always encouraged me to think about writing as an art whatever I did as a job. As I graduated college, and law school, and moved from job to job, she congratulated me but always asked me "but what are you doing to write?" For many years I wasn't doing much. That's why it felt so good to tell her that I was making an effort to write for writing's sake. I wanted her to know that she'd been right, and that I remembered.

Kathi Condell Herroon passed away Monday. I love to write, and that's because of two people — Kathi Condell, and my father. Thank you.

What if we could all live so that thirty years down the road, people we've touched want to share news with us about what we've helped them achieve?

162

Judge Lisa Gorcyca Doesn't Hate Kids. Judge Lisa Gorcyca Hates Failure To Submit.

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Judge Lisa Gorcyca, a judge in Oakland County, Michigan, is getting quite a lot of press this week for sending three kids to juvenile detention.

Judge Gorcyca doesn't preside in criminal court. She doesn't rule on delinquency petitions in juvenile court. She's a judge in the Family Division. And she sent three kids to juvenile detention — and specifically ordered them separated — because they didn't obey her orders to cultivate a warm relationship with their estranged father.

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25

What Did A Federal Prosecutor Need To Get A Gag Order On Reason Magazine? Pitifully Little.

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When Back in June we all found out that federal prosecutors did, indeed, secure a gag order prohibiting Reason Magazine from commenting on a federal grand jury subpoena seeking to unmask mouthy anonymous commenters. At the time, nobody had a copy of the government's application for a gag order; we only had the formulaic, boilerplate order signed by Magistrate Judge Frank Maas. I made a prediction about the government's application:

Here's my prediction: when it comes to light, it will contain no more substantive information than appears on the face of the subpoena. That is, it will merely say "these people said these things, we want their information, therefore, give us a gag order."

Guess what? It had less than that.

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21

Kutner-ing Corners

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Adam Kutner3 is (apparently) a familiar face around Las Vegas.  He's of the genus of lawyers with television advertisements, intoning soberly: "have you been injured in an accident?", as music likely reused from an episode of Unsolved Mysteries fills the background:

Kutner can empathize, because he's also been injured — online.  And his new lawsuit is a good example of why Nevada's pretty-damn-good anti-SLAPP statute is important.

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79

Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not?

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tldr: yes with an if, or no with a but.

By now you've heard about how an Oregon Labor Commissioner ordered the former owners of a bakery to pay $135,000 for refusing to bake a wedding cake for a same-sex couple. That order was widely reported as "gagging" the bakers and preventing them from expressing their opposition to same-sex marriage. My initial conclusion was that this spin was clearly wrong. People I respect — including my co-blogger Patrick — suggested that I should take a more careful look, and I have. My modified conclusion is that the Oregon Labor Commissioner's order is very troubling in light of the facts of the case because it's not clear what it bans. Based on the evidence before the Commissioner, the order may or may not purport to ban the Kleins from saying that they intend to continue to litigate the issue or that they believe that the order is unconstitutional.

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59

Do Judges Have Inherent Dignity?

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According to Justice Anthony Kennedy, the Constitution provides all Americans a right to "equal dignity in the eyes of the law."4 That's nice in theory I suppose, but in the America where I grew up dignity had to be earned, and maintained, by correct behavior and continued demonstration of good character. Dignity built up over many years could be thrown away in seconds by one rash or foolish act.

That's just what Judge Mark Mahon, Chief Judge of Florida's Fourth Circuit Court in Jacksonville, is doing to his own dignity. Over the course of a lazy three day weekend, Judge Mahon beclowned himself and disgraced his office. He did so by subverting the United States Constitution, which he is sworn to uphold and protect, in a vain attempt to protect that now vanished dignity.

Here's the story.

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19

What Charles Carreon could teach ICANN

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Popehat is happy to offer a new guest post from Cathy Gellis.

There is no question that the right of free speech necessarily includes the right to speak anonymously. This is partly because sometimes the only way for certain speech to be possible at all is with the protection of anonymity.

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.

In short, remember Charles Carreon? (more…)

73

Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is

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Spanish-language network Univision has cancelled its telecast of the Miss America pageant in the wake of Donald Trump's characterization of Mexicans, and Trump has now sued Univision in response. The lawsuit, filed in state court in New York, is here.

I won't opine on Trump's contract-related claims without reading his agreement with Univision. But Trump and his lawyer, Jeffrey L. Goldman of Belkin Burden Wenig & Goldman LLP, have also included a defamation claim. As befits Trump, the claim is loud, vulgar, and stupid.

The defamation claim arises from Univision President of Programming and Content Alberto Ciurana using Univision's Instagram account to post photos of Trump and mass murderer Dylann Roof side by side with the words "no comments." Ciurana was no doubt thinking of Trump's characterization of Mexican immigrants:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

Trump claims that Univision and Ciurana have broadcast false statements about him, and demands $500 million in recompense. But the defamation claim itself doesn't specify what false statements Trump is upset about; it only refers back to the factual recitation of the complaint. That section, in turn, only states that Trump made "insulting remarks about Mexican immigrants" and vaguely refers to (without printing or describing precisely) the Instagram post. Remember: vagueness in defamation claims is the hallmark of meritless thuggery.

As Eric Turkewitz points out, Trump's defamation claim is sanctionably frivolous. Ciurana's post wasn't a potentially actionable false statement of fact. It was a satirical statement of opinion — a hyperbolic assertion that Trump's actions show him to be a bigot. Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.

Trump's defamation claim also plays into the vapid modern narrative that vigorous criticism impairs First Amendment rights. Trump and his lawyers refer to "Univision's attempt to suppress Mr. Trump's First Amendment rights and defame his image," referring back to the Instagram post. In the same breath, they complain of "Univision's dubious efforts to create a false narrative." Trump's speech is protected and should be lionized; speech criticizing it is illegitimate and unprotected. Trump's lawyers sometimes make this very stupid argument within the same sentence:

Univision, in an obvious attempt to politicize the situation and suppress Mr. Trump's right to free speech, including his views on both trade and illegal immigration along the U.S.-Mexican border, has made a concerted effort, upon information and belief, in collusion with others, to wage war against Plaintiffs in the media.

I sympathize with attorney Jeffrey L. Goldman. Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher. But no matter how freakishly swollen a client's ego, an ethical lawyer is supposed to refrain from filing vexatious publicity-seeking claims. Goldman failed at that ethical obligation. Shame on him. And Trump? The man clearly lacks the capacity for shame.

50

No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas

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Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: "well, citizens on the grand jury thought that there were grounds to issue a subpoena."

No.

In fact, hell no, or if you prefer, bless your heart, no.

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40

Is "No, I Didn't Do It" Defamatory? The Bill Cosby Defamation Case

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Bill Cosby's recently been accused of lifelong serial rape and sexual abuse, sometimes involving drugging women. He's responded — as celebrities tend to — with broad denials and suggestions that his accusers are lying. That public relations move has provoked a defamation case filed in federal court in Massachusetts posing a significant question: when you vigorously deny an accusation, do you defame the accuser as a liar?

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92

Gamer Gate vs Anti Gamer Gate A Civil Discussion on Inclusiveness

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Consider this post a teaser trailer. Randi Harper, author of a Gamer Gate block bot and I will be debating discussing the thesis

"are the virtues of an open society / inclusiveness / debate best served by excluding those who are not in favor of full inclusiveness?"

(I think the answer is "no").

Randi's busy for a week or two (and so am I), but hopefully next week she and I will have the email discussion, which will then be tidied up for formating and posted here.

In Randi's words:

this is going to be fun. ;)