Popehat

69

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

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American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

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45

Ville de Granby Takes The Lead In Protecting Endangered Official Feels

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[AP: Ville de Granby, Québec, Canada] Shouting their slogan Je suis important, vous ne pouvez pas irriter mon cul délicate, public employees celebrated a legal victory over internet abuse this week in Granby, a town in southern Quebec.

That victory came when the Granby municipal council unanimously passed an amendment to expand Article 17 of the municipal code. For years that code has forbidden the populace to "provoke, insult, revile, blaspheme or harass" police officers or municipal employees in the course of their duties. Last week's amended explicitly expanded the ban to prohibit insults online or in social media.

"This measure patches a gaping hole in our protection," said Robert Riel, deputy mayor of Granby. "People felt free to insult public employees online. Now they know they can't." Riel — occasionally pausing to collect himself — described how his ability to do his job had been ruthlessly disrupted by citizens criticizing his competence, his policy choices, and his 2010 arrest for attempting sexual intercourse with an award-winning snowman in Granby's public square during the town's Winterlude festival.

"That snowperson was extremely realistic and provocative," Riel added. "But my feelings are just as real."

Though it had strong support from elected officials, local police were the driving force behind the recent amendment. For two years, Granby law enforcement has been the target of relentless criticism, questioning, and even satire by the Facebook group Les policiers zélé de Granby, without any regarding to their rights as public officials and Canadians to be protected from offense. Some of the unflattering commentary was not even in French. Marco Beauregard, directeur of the department, recounted the toll that insults have taken. "My officers are out there ever day, putting themselves on the line," he said. "I owe it to them, and to their families, to do everything I can to make sure they come home at the end of the shift with their feelings intact."

Officers have reported being upset, disquieted, and even hurt by social media comments. "How can a public officer do his or her job," Beauregard demanded, "when people feel free to question the way they do it — and even to mock them? What makes them think they can talk about whatever they want?"

"My journey of improvement on anger-management issues is not an appropriate topic of public conversation, especially after last September," argued Beauregard, referencing an incident that led to the partial destruction of a traffic barrier, two police cars and the lobby of a local Tim Hortons.

"Being Canadian means standing up for your rights," said municipal council member M. Pascal Bonin. "That's all we are doing — using our authority to stand up for our right not to be insulted. It's a fundamental right, and it shouldn't yield to anything."

Bonin himself has been the target of rude jokes regarding his name, despite his repeated and patient explanations that it is pronounced Bon – eeen. "If citizens can say what they want about civic employees, you're going to see the whole culture of public life change," he said. "Before you know it, the only sort of people who will run for office or take a public job are the hardened sort that can just shrug off criticism as part of their job, or who think that they are only there to serve the public."

"And what would that look like," Bonin asked, shuddering.

45

Two Stories About The Criminal Justice System And Consequences

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Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.

I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.

The consequences? Four written reprimands, a five-day suspension, and a seven-day suspension.

If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.

That's the difference between me and a federal employee.

The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.

Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.

Dateline, Texas:

In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:

So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.

Eventually Judge Criss ordered the prospective juror arrested:

Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –

The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.

Juror No. 48: Okay. Then – –

The Court: Have a seat, sir.

Juror No. 48: I guess they have to visit me.

The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.

Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."

Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.

But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.

Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.

These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.

That's the justice system.

91

Prenda Law And The Terrible, Horrible, No Good, Very Bad Appellate Argument

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It's time for an update on the exploits of Prenda Law, that team of crooked, bumbling copyright trolls that's been stomped by judges nationwide.

Today, the United States Court of Appeals for the Ninth Circuit heard oral argument in a Prenda case. Prenda's principals have appealed Judge Wright's catastrophic May 2013 sanctions order against them. It was worth the long wait for court-watchers — though probably not for Prenda.

Judge Wright faced complex problems: given that Prenda had dismissed its copyright-trolling case, what sort of sanctions power did he retain, and what sort of due process did he have to extend to the Prendarasts to invoke that power? On appeal, Team Prenda argues that Judge Wright's sanctions and attorney fees award exceeded his power because (1) Team Prenda's inviduals — like John Steele and Paul Hansmeier — were not properly before the court, and (2) Judge Wright effectively levied criminal sanctions, triggering procedural rights that he did not extend to Team Prenda. John Doe — the defendant who triggered this whole escapade, successfully represented by Morgan Pietz — argued that the bizarre and extreme facts supported all of Judge Wright's order under applicable law.

It's foolish to bet on specific outcomes based on oral argument. But that's the kind of fool I am. I predict that the Ninth Circuit will uphold part of Judge Wright's sanctions order — the part that represents a civil sanction — and send the case back to the trial court for a more complete hearing on criminal sanctions.

That's not good for Prenda.

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45

Was Ebony Dickens' Facebook Post Criminal?

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I'm waiting for the Supreme Court to decide Elonis v. United States, which may or may not clarify the difference between "true threats" and speech protected by the First Amendment. It's possible that the Supreme Court will clarify whether a "true threat" must be both objectively threatening (that is, a reasonable person hearing the threat would believe it to be a sincere expression of intent to to harm) and subjectively threatening (that is, the accused intended for the threat to be taken as a sincere expression of intent to do harm). Or it's possible that the Supreme Court will merely decide whether the federal interstate threat statute requires both.

In the meanwhile, let's look at a kind of case in which the distinction might make a difference.

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40

Lawsplainer: Why The D.C. Circuit's Anti-SLAPP Ruling Is Important

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Paul Alan Levy reports that the D.C. Circuit has applied the refinement reflected in Shady Grove of the Erie doctrine to preclude application of state anti-SLAPP laws to cases where jurisdiction is premised on diversity of citizenship.

Wait, what?

I was perfectly clear.

That was literally gibberish.

Fine. Fine. I'll explain. Will that make you happy?

Probably not.

Too bad. I'm doing it anyway.

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72

Tumult At Oberlin In Wake Of Emotional Support Animal Companion Initiative

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Oberlin, Ohio (AP): A new initiative calculated to promote healing and inclusiveness has instead led to controversy, legal threats, violence, and reported feelings of unsafeness on the campus of Oberlin College.

Oberlin administrators announced the Emotional Support Companion Animals Program for Everyone, affectionately known as "ESCAPE," last week to an eager student body. "This is a safe space," said Walter Green, the college's Executive Vice-President for Redress of Grievances. "And we choose to make it safer with the help of the nonhuman companions with whom we share Mother Earth."

"The nonhuman companions' choices will also be part of our community dialogue," he added.

With that, Oberlin launched an ambitious plan to supply each student and faculty member with an animal companion to support their emotional, spiritual, and socioeconomic needs, drawing from a large population PETA recently liberated from various forms of servitude across the midwest. Excited undergraduates lined up outside the Nifong Student Empowerment Cooperative, waiting their turn to choose and bond with a companion. "We needed this. We needed this to get through this year from hell," remarked Sophomore False Consciousness Studies major Lauren Haller, as her friends jazzhanded in an affirming manner.

Haller referred to a series of crises that have intruded upon the lifespaces of Oberlin students. In February a senior delayed three days before accepting public responsibility for using the term "girls." College administrators, citing federal privacy rules, declined to specify his punishment. In March, the campus roiled when a computer error resulted in several issues of GQ being stocked at the student convenience store, and the administration failed timely to respond to a Campus Justice Petition demanding changes to certain culturally normative elements of the engineering curriculum. More recently, a speech by extremist Christina Hoff Sommers caused widespread distress. Plans to pelt Ms. Sommers with rotten fruit was derailed when organizers learned that their organic produce supplier had once spoken in opposition to a $25 minimum wage, news that led to widespread tearful recriminations.

Unfortunately, ESCAPE has not provided the solace for which it was designed. Problems began the first day when Little Mister Derrida, a wolf hybrid companioned with popular Classism Professor Forrest Moore, savagely attacked senior Pietro Salvador's emotional support rabbit Che. "It's unreasonable, and in fact very offensive, to expect Little Mister Derrida to deny his nature in order to confirm to social expectations that make the majority comfortable," protested Professor Moore, who declines to classify his companion as either wolf or not-wolf. Salvador, who could not be reached for comment, reportedly informed his RA that he had not found the experience emotionally supportive.

There were other violent confrontations between companions of different backgrounds and life experiences throughout the week. Moreover, many students reported that their classmates had not offered the welcoming and accepting community that is the hallmark of Oberlin. Sophomore Henry Trask's attempt to bring his emotional support pig to a Comparative Religion class led to a largely unproductive and mostly screamed debate about the inherent tension between Trask's right to emotional support and his classmates' protected right against offense. Freshperson Darlene Oswalt filed a federal civil rights complaint when a professor asked her to take her raptor outside, saying that the college had attempted to "silence [the eagle's] own story." Moreover, students with sensory differences have reported hygiene anxieties. "The residence halls reek from feces and urine," said one student who asked to remain anonymous. "And this time not just that one graduate dorm."

Administrators rushed to address student concerns, but unsuccessfully. Room-to-room trigger warnings listing the types of companions therein proved impractical with an active and mobile student body and were condemned as "othering and stigmatizing" by some students. The school hired emergency crisis counselors, but discovered that the students' anxieties and conflicts merely relocated to the waiting areas of the counselors' offices. "I can't reach serenity without Dostoyevsky," said one student, referring to her emotional support chinchilla. "And Dostoyevsky can't be serene if there are, like, four coral snakes waiting there with those pretentious assholes from the theater department."

At press time, administrators were privately expressing grave concern. "I don't know what to do," said Green. "There's going to be a surge in calls for emotional support next week when those free speech fanatics from FIRE show up to talk. And this is Peak Triggering season in the economics and history departments. These students need to have someone unquestioning and uncritical reaffirm their feelings, and we thought animals fit that bill."

"They are being exposed to upsetting ideas every day," said Green. "What are we supposed to do, just tell them to deal?"

84

Just A Couple Of Questions About Lynch Mobs

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If you're somebody who supports privacy and freedom of conscience, do you think it's healthy for a republic to have a political media that digs up wrongthink statements by random nobodies, then amplifies the statements to expose the random nobodies to ridicule or financial ruin by thousands of angry strangers?

And if you've participated in such ridicule, do you feel better, months later, knowing that you helped cost that random nobody a job, all over a poorly expressed statement on the internet?

24

The Road To Popehat: Wait, Wut Edition

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It's time for the Road to Popehat, where we check out the traffic logs, see what searches brought you here, and lose 1d6 SAN.

This time: I don't mean to be judgmental but you people are freakish.

Pony porn defenestration: You like porn of ponies being thrown out windows? Your mom was coming into your room so you threw your pony porn out the window? Actually I don't want to know.

resignation letter pirate: "Arrrr, this secretarial position be the worst job on t' whole ship."

what happened to popehat: It's a long story and it begins with Underoos and the Ford Administration. You see . . . wait. You might be asking about the server outage.

can your ex-fiance sue you for defarmation for rude messaging each other: American humanity: the Lawyer Full Employment Act.

can you go to jail for slandering: Nine out of ten Twitter law experts say yes.

will security allow me to carry tagged walrus tusk through security checkpoints: There's something endearing about this person's faith in Google.

why we should not use rodeo clowns. Because they are PEOPLE.

What kind of charges would be filed for mailing someone a dildo: Logan Act. It's always the Logan Act.

fucked up quotes about life lessons: Patrick! We have our new site slogan!

72

"Safe Spaces" And The Mote In America's Eye

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My three kids are sarcastic and irreverent. This isn't a shock to anyone who knows me. Their mouthiness can be irritating, but usually I manage to remember that I don't set much of an example of rhetorical decorum.

Maybe I should start giving the same consideration to other people's kids.

For some time I've been mean to university students who feel entitled to a "safe space" — by which they seem to mean a space where they are insulated from ideas they don't like.

I call these young people out for valuing illusory and subjective safety over liberty. I accuse them of accepting that speech is "harmful" without logic or proof. I mock them for not grasping that universities are supposed to be places of open inquiry. I condemn them for not being critical about the difference between nasty speech and nasty actions, and for thinking they have a right not to be offended. I belittle them for abandoning fundamental American values.

But recently a question occurred to me: where, exactly, do I think these young people should have learned the values that I expect them to uphold?

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19

Why Are Nevada State Senators Trying To Eviscerate The State's Anti-SLAPP Statute?

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In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.

So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?

The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:

  • The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest.  SB 444 narrows the protection to speech on an "issue of public concern," meaning "any topic that concerns not only the speaker and the speaker's audience, but the general public, and is not merely a subject of curiosity or general interest."  If you have no idea what that actually means, you're not alone.  There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern.  There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
  • SB 444 dramatically changes the deadlines for an anti-SLAPP motion.  The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit.  SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
  • Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence.  Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence.   SB 444 changes the language, requiring the plaintiff to make only a "prima facie case."  To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim.  It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced.  Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant."  In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false.  This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
  • Under existing law, a prevailing defendant is entitled to fees.  If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious.  SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis."  That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
  •   SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit.  That substantially reduces the deterrent effect of the statute.

If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?

I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.

27

Pepperdine Law School Debate On Criminalizing Revenge Porn

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Yesterday I had the pleasure of participating in a debate at Pepperdine Law School, a place so obtrusively beautiful that I cannot grasp how anybody manages to study.

Adam Steinbaugh — justifiably famed as one of the most brutally effective vigilantes exposing revenge pornsters — moderated and gave an overview of revenge porn and the sorts of prosecutions that have happened so far.

My worthy opponent was Jim Chen, a law professor at Michigan State.

Our range of disagreement was actually fairly narrow. I think that the most promising and effective way to prosecute revenge porn is to use existing laws against hacking, extortion, and fraud, as has been done against people like Kevin Bollaert and Hunter Moore. Jim Chen didn't disagree. But we sparred over whether American courts will treat revenge porn — that is, putting up someone else's nude picture without their consent, and in order to harm them — differently than other publications of nudes, and give it less First Amendment protection. I think that though there is a social consensus that revenge porn is vile, U.S. v. Stevens forecloses creating new categories of less-protected speech or engaging in ad-hoc case by case "balancing" of the value of speech. Jim thought that Stevens is distinguishable and suggested that cases recognizing a substantive-due-process-based zone of privacy provided a rationale for treating invasions of privacy differently.

Jim's persuasive, but I still think that addressing revenge porn by trying to create a new category of unprotected speech is unlikely to succeed — and I don't want it to be easy to create such new categories. I think the best way to deal with it from a law enforcement perspective is (1) vigorous use of existing laws against fraud, extortion, child pornography, and hacking, and (2) creation of laws that take advantage of already-existing First Amendment norms. For instance, Mark Bennett proposes an approach that would take advantage of the existing obscenity standard, suggesting that revenge porn might satisfy that standard because the non-consensual nature of it can make it patently offensive and without serious redeeming value. It's not an easy path, but it may be more effective than just trying to carve out a new First Amendment exception.

Meanwhile, I maintain there is a very practical problem with proposed federal revenge porn laws. The feds have limited resources and guidelines that limit the types of cases they take. Federal law prohibits marijuana distribution, but you generally have to get caught with an epic amount of marijuana to get prosecuted by the feds. Returning to the U.S. after deportation is a federal crime, but in most districts you won't get prosecuted unless you were deported after a serious felony. If Congress passes a federal law criminalizing pure revenge porn — that is, any non-consensual posting of intimate pictures — it will be a mostly cosmetic move. The feds will never devote the resources to prosecute any significant number of pure revenge-porn cases. Instead, based on their standard approach to resource allocation, they will prosecute the aggravated cases, like that of Hunter Moore. In other words, they will prosecute the cases involving the sort of conduct (hacking, extortion, wire fraud) that they could have prosecuted anyway. That's why I don't think a federal law will be much more than a gesture.

The debate may show up online; I'll drop a link if it does.