Author: Ken White

100

DoJ's Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought

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Last Friday the folks at Reason confirmed what I suggested on Thursday — that the U.S. Attorney's Office for the Southern District of New York, after hitting Reason with a federal grand jury subpoena to unmask anonymous hyperbolic commenters, secured a gag order that prevented them from writing about it.

Nick Gillespie and Matt Welch describe how it all went down. Read it.

So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.

What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?

The answer lies in the everyday arrogance of unchecked power.

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4

"Bald, Fat & Crazy" — A Book About Perseverance

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Today I write in praise of a new book called "Bald, Fat & Crazy." No, it's not a memoir, but thank you for asking.

Nearly a decade ago my friend Stephanie Hosford found herself unexpectedly pregnant, diagnosed with a virulent form of breast cancer, and just months from a long-planned international adoption, all at the same time. The book, freshly released and justifiably well-reviewed, is the story of how she handled it. It's funny and inspiring, and useful in reminding us that whatever faces us, someone else is facing something even scarier. Check it out.

86

Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?

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On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to Reason.com in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.

In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting Reason.com from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling Reason.com that the Department of Justice asked, but did not require, that the subpoena be kept secret.

Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit Reason.com from disclosing or discussing the grand jury subpoena.

This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.

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39

Partial Victory In Patterico's Free Speech Case Before Ninth Circuit

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Long-time readers may recall that, together with Ron Coleman, I'm pro bono counsel to Patrick Frey, who blogs as Patterico.

Patrick was targeted with a thoroughly vexatious lawsuit attacking his blogging. Ron and I won the case in the trial court, securing the dismissal of plaintiff Nadia Naffe's federal and state claims.

Today the Ninth Circuit upheld the result in part and reversed it in part. The opinion is here.

You may recall that the trial court dismissed the entire case based on two points. First, the court agreed with us that Ms. Naffe did not state any facts showing that Mr. Frey blogged in his official capacity as a Deputy District Attorney, and therefore her Title 28 U.S.C. section 1983 claim for civil rights violations "under color of law" could not survive, because Section 1983 only applies to state actors. Second, the trial court — on its own — questioned whether Ms. Naffe could prove the $75,000 in damages necessary for diversity jurisdiction1, and eventually found that she had failed to make a showing of sufficient damages.

The Ninth Circuit agreed on the first part and disagreed on the second.

In a published decision that will be significant for public employees who blog, the Ninth Circuit agreed that Mr. Frey didn't blog as a "state actor" for purposes of Section 1983 just because he's a county employee. The Court agreed that Naffe had not stated any facts giving rise to a reasonable inference that Patrick was blogging as part of his official responsibilities. "Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events." The Court also rejected Naffe's argument that Patrick's blogging was related to his work as a county prosecutor because he discussed criminal law issues. Finally, the Court noted that Patrick frequently reminded readers that he blogged and Tweeted in his private capacity, not his official capacity.

Crucially, the Ninth Circuit confirmed that a state employee can talk about the nature of their work without transforming their speech into state action. That's key for the free speech rights of all public employees. The Court noted "if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the 'marketplace of ideas.'" That's what we argued on appeal, and Eugene Volokh ably argued in his amicus brief on behalf of the Digital Media Law Project: Naffe's proposed interpretation of the law would mean that a teacher couldn't blog about teaching, or a police officer about police work, without transforming their writing into official "state action" subject to civil rights lawsuits. That portion of the Ninth Circuit's opinion will be useful whenever a state employee is sued under the theory that their private speech should be treated as official action.

However, the Ninth Circuit reversed the trial court's dismissal of the state claims. At issue was the standard the trial court applied. Having questioned whether Ms. Naffe could prove $75,000 in damages, as required for diversity jurisdiction, the trial court found that she had not proven such damages by a preponderance of the evidence. The Ninth Circuit found that was the wrong standard. Instead, it found, a trial court should only dismiss a case for lack of diversity jurisdiction when it appears to a "legal certainty" that the plaintiff cannot recover at least $75,000. That's an extremely low standard for Naffe to satisfy, and the court found she satisfied it.

So: the case goes back to the trial court. When it does, we'll have the opportunity to ask the trial court to address our motions that were mooted by its prior ruling. Specifically, we filed an anti-SLAPP motion attacking Ms. Naffe's claims as meritless attempts to chill speech, and a motion under California Code of Civil Procedure section 1030 seeking to compel her to post a bond to cover the costs of the case. We're confident those motions are correct and look forward to pursuing them.

Meanwhile, as before, it remains a privilege to work with Ron Coleman and to defend Patrick Frey's free speech. Thanks to Eugene Volokh, whose excellent brief on the free speech implications was instrumental.

566

Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com

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The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting Reason.com, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.

Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?

Because these twerps mouthed off about a judge.

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112

Leaked Northwestern University Email States Rules For Title IX Investigations

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A Northwestern University insider, who wishes to remain anonymous, leaked to Popehat the following email on Title IX investigations, which was circulated to the Northwestern faculty and staff last Friday.

FROM: Joan Slavin [Director, University Sexual Harassment Prevention Office; Title IX Coordinator; Special Assistant to the Provost]
TO: FACULTY GROUP [3,344 email addresses], ADMIN GROUP [3,635 email addresses]
DATE: Friday, May 30, 2015 at 3:15 p.m.

Dear Northwestern administrators and faculty:

Many of you have expressed concern and upset at Professor Laura Kipnis' latest article, this one attacking Northwestern's Title IX investigation of her based on a past article. (Those of you who have not read the article can find it here: http://chronicle.com/article/My-Title-IX-Inquisition/230489/?key=Gm52dwRqaXtKZyxmNjlDZTpTYXE8NEx2MnREYn8hblFREg==. Trigger warnings for victim-blaming, sexual assault issues, cultural prejudice.)

As you know, we have a strict policy against commenting on pending Title IX investigations except to Northwestern administrators, victims, witnesses, victim advocates, student-administration liasons, and victims' emotional support companions. Therefore, I cannot state whether or not several more students have filed complaints against Professor Kipnis based on her writing an article discussing her experience with students filing complaints against her based on her writing an article. I also cannot state whether we have commenced a new proceeding, a more comprehensive one this time, against Professor Kipnis.

But I must emphasize that Northwestern University will not tolerate any retaliation or aggression, macro- or micro-, against students who have made complaints against faculty or each other. Such retaliation is both unlawful under Title IX and against University policy. Professor Kipnis' latest article, like her previous one, represents a deeply problematical challenge to these community values.

This situation requires a review of our basic anti-retaliation rules. I hope that this will both remind you of your obligations and demonstrate without cavil that our policies are completely consistent with freedom of speech, properly understood.

Public Attacks On Victims: When a student accuses a faculty member or another student of sexual misconduct, the only University response consistent with Title IX is contrition, acceptance, and support. That's an obligation of all University employees. Whether or not the complaint has yielded public litigation or press coverage, it is inappropriate for University employees to engage in victim-blaming and victim-challenging behaviors that might deter complaints. Prohibited behaviors include weighing, evaluating, questioning, critiquing, deconstructing, or otherwise assaulting the victim's complaint. This proscription applies to all departments: it is inappropriate to challenge a victim's factual account or legal assertion through the disciplines of law, philosophy, rhetoric, logic, or physics. Statements of support and belief in the victim's account remain acceptable — and strongly encouraged — under any discipline.

Professor Kipnis forces me to clarify a point that ought already be plain in an environment like this one: "neutrality" is no shield for attacks on victim integrity. Professor Kipnes' columns suggest that it is appropriate in the course of discussing an accusation to report what the target says in response to it. Unless the response is a full acknowledgement of wrongdoing and apology, it is not appropriate. Repeating what the wrongdoer says in response to an allegation re-victimizes the victim. The pretense of "neutrality" or "even-handedness" or "telling both sides" has its roots in privilege. Neutrality is not neutral in any academically meaningful sense.

We recognize that these concepts can be difficult to understand for some, particularly those in the physical sciences. Therefore, we have retained a professional adviser to help employees comply with their obligations. Justin Weinberg is an Associate Professor of Philosophy at the University of South Carolina and has published a forceful rebuttal to Professor Kipnis' most recent article, and has reaffirming this University's values: http://dailynous.com/2015/05/30/northwestern-and-title-ix-whats-going-on/. As a respected Professor of Philosophy, he is eminently qualified to explain what areas of inquiry and discussion are inappropriate in a University environment.

Title IX Procedure: Professor Kipnis' latest article is a brutal and biased attack on the University's procedure for evaluating Title IX complaints. I must remind the faculty that discussions of procedure and "fairness" are not excuses to attack victims. Employees should avoid discussions that imply that any particular victim, or victims in general, may not be telling the truth, or may be seeking unwarranted remedies. We do not speak in a vacuum; our words can hurt and retaliate. Discussions of notice to the accused, assistance of counsel, burdens of proof, and opportunity to confront accusers all arise from a presumption that the victim might be untruthful or mistaken. That is not a presumption that we may lawfully or ethically entertain.

Curriculum: It is our collective responsibility to avoid unlawful retaliation not only directly, but implicitly. During this period of reassurance, and whenever Title IX investigations are pending, the College of Arts & Sciences faculty should avoid undue emphasis on problem authors whose texts undermine free reporting of sexual misconduct, such as Arthur Miller, Franz Kafka, or Harper Lee. This is an excellent opportunity to redouble our efforts to expose students to writers who embrace welcoming approaches to victim truths, including Rigoberta Menchu or Wahneema Lubiano. Classes on the American court system, civil rights and civil liberties, and criminal justice may continue so long as professors emphasize to their students that they are participating an an anthropological study of a profoundly sexist and cisgender-biased system and that no positive normative judgment is intended.

With these guidelines, I hope that faculty conduct will better reflect our University's shared values. Further Title IX investigations will help professors recognize how their expression, whether in the classroom or out of it, can help us achieve our goal: a welcoming environment for everyone.

61

Dennis Hastert And Federal Prosecutorial Power

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This week, federal prosecutors indicted former Speaker of the House Dennis Hastert.

Hastert is charged with two federal crimes: structuring financial transactions to evade IRS reporting requirements in violation of 31 U.S.C. section 5324(a)(3) and lying to the FBI in violation of the notorious 18 U.S.C. section 1001. Both charges reflect the breadth of federal prosecutorial power.

The indictment has mostly inspired chatter about what it doesn't say. Hastert is charged with structuring withdrawals of less than $10,000 (so that they would not be reported to the IRS) so that he could pay off an unidentified person for Hastert's unidentified past misconduct. What past misconduct, or threatened accusation of misconduct, could lead Hastert to pay $3.5 million? The indictment doesn't say, but it has been drafted to imply that the allegation of past misconduct relates to Hastert's job as a teacher and coach in Yorkville, Illinois. Hastert isn't charged with doing anything to the accuser, and the accuser isn't charged with extortion.

As Radley Balko has pointed out, structuring (or "smurfing") charges are extremely flexible. They demonstrate the reality of how Americans targeted by the Department of Justice can be charged. We imagine law enforcement operating like we see on TV: someone commits a crime, everyone knows what the crime is, law enforcement reacts by charging them with that crime. But that's not how federal prosecution always works. Particularly with high-profile targets, federal prosecution is often an exercise in searching for a theory to prosecute someone that the feds would like to prosecute. There is an element of creativity: what federal statute can we find to prosecute this person?

We'll learn more about the reasons for Hastert's payments in the course of the case (or through Department of Justice leaks calculated to harm him). I suspect we'll find that the investigation happened like this: the feds heard that Hastert was paying someone off based on an accusation of old misconduct, determined that the misconduct was too old (or out of their jurisdiction) to prosecute, and started subpoenaing records and interviewing witnesses until they found some element of what he was doing that was a federal crime. In other words, they targeted the man, and then looked for the crime.

The problem with this scenario is that federal criminal law is extremely broad. Practically speaking, it gives federal prosecutors vast discretion to determine who among us faces criminal charges. If you think that you're safe because you've never committed a crime, you may learn to your surprise that you're wrong.

The rational response to this situation is clear: don't trust the feds, don't talk to the feds. But Dennis Hastert, like many accomplished people, believed he could talk his way out of the situation. When the FBI came to interview him, he didn't refuse to answer and call his lawyer. According to the indictment, he confirmed in response to an FBI agent's question that he was withdrawing cash in order to store it because he didn't feel the banking system was safe. For that, he's been charged with lying to federal agents.

This is another aspect of the federal government's vast prosecutorial discretion. Hastert's alleged false statement happened in December 2014. When agents interviewed him, I guarantee you that the feds had already made their case. They had already put witnesses before the grand jury, they had already used grand jury subpoenas to get Hastert's bank records, they already knew exactly how they would charge and prove up the structuring charge. When they went to interview Hastert, there were only three possible outcomes: he would refuse to talk, he would confess, or he would lie in a way they could easily disprove. They were looking either for the confession, which would make their case easier, or the lie, that would give them a new theory on which to charge him with a crime. Under Section 1001 a lie must be material to be criminal. But the materiality element is weak. It only requires the government to show that the lie is the sort of statement that could conceivably influence the FBI. It doesn't require the government to show that the lie actually had any impact whatsoever. Thus the FBI can show up with its case ready to indict, fish for a lie that they know is a lie, and pile that charge on top of whatever the substantive charge is. That's why I bring up Section 1001 so often and explain why it means you must shut up. You can be prosecuted for as little as saying "no, I didn't" in response to a already-documented accusation.

The criminal justice system needs to be able to prosecute perjury — lies under oath before a tribunal. And I can see why it needs to be able to punish false statements to the federal government that represent an attempt to commit fraud (say, false statements to get a passport) or that impact an investigation (say, a false accusation that triggers an inquiry).

But ask yourself: what is the legitimate basis for giving the feds the power to prosecute people for exculpatory lies that have no impact whatsoever on their operation?

From the federal government's perspective, the basis is clear: it's a tool to help them charge people they want to charge.

From the citizen's perspective, this situation points to one obvious conclusion: shut up. Never answer a federal agent's questions without a thorough debriefing with a qualified lawyer first.

32

PONIES FOR THE PONY GOD

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From: gemma@arialblack
Re: Fresh content for Popehat

Hi Ken

My name is Gemma and I work primarily as a freelance writer, I'm writing to you because I thought you might be interested in a contributed article for popehat.com?

Previous to starting my career as a freelancer I worked for many years in business and finance. When I became a mother, I decided to turn to writing to make a living and now pen articles on as many different topics as I can – from news and current affairs through to pieces on money matters.

I'd love to know if you'd be interested in a piece from me. This would come to you free of charge, and all I'd ask in return is that I'd be allowed to mention a partner as a resource within the text. If you're interested in this I'd love to hear back from you with ideas for topics I could write on. Otherwise I leave you with my best wishes

Kind regards
Gemma

Dear Gemma:

Thank you for your correspondence?

We at Popehat might well be interested in an article. Specifically we'd be interested in an article about certain security issues. If you think that your background qualifies you to write about security issues — about certain threats to our children, that you and I as parents must consider to do our jobs — I can elaborate.

Of course it's fine to mention your partner. We at Popehat unreservedly support marriage equality and are in favor of normalizing all relationships by mentioning them in writing.

Thanks,

Ken at Popehat

Hi Ken

I would certainly be interested in hearing your ideas and would be more than willing to put something together on what you suggest. Please do let me know what you had in mind

Kind regards
Gemma

Dear Gemma:

What I have in mind is nothing less than a comprehensive treatment of the greatest menace facing our race: ponies.

By race I mean the human race, of course. I'm not a racialist. Ponies are a threat to all ethnicities. Of course, some ethnicities are better able, because of circumstance, to repel the pony threat. Which ones is a matter of considerable debate. On the one hand white Americans enjoy superior wealth, agreeable climate, and the ability to be elected to our various legislatures without any apparent qualifications whatsoever. Arguably this makes us more equipped to deal with ponies through expensive security systems and various punitive zoning measures. Many whites would deny this truth; this phenomenon is known as Pony Privilege. But on the other hand, white Americans have become flabby, easily distracted, and generally unreliable with the sort of light antitank weapons that are most effective against closely-grouped clusters of ponies. I made my oldest child fire a LAW at a group of burros the other day — you know, for practice — and it knocked him right on his ass. What are they teaching our children in their physical education classes? The ponies aren't here to play dodgeball with us, Gemma.

I may have strayed somewhat from the point.

Yes. Back to your article. Listicles are very popular these days so to clickbait this motherfucker I'd like to see something along the lines of "The Ten Most Horrible Things That The Ponies Will Do To Your Children When That Day Comes. Number Seven Will Make You Soil Yourself And Curl Into A Stinking Ball." Then I'd like a series of ten cautionary tales, calculated to stir the complacent guts of America: Pilates classes disrupted. Facial hoofprints on children just before picture day. Great heaps of the dead making our electric vehicle charging stations almost inaccessible. HBO producers forced against their will to replace Peter Dinklage with a swaggering, abusive Shetland. Mere anarchy loosed upon the world. Blood-dimmed tides irretrievably staining my sustainable bamboo parquet meditation deck. And so on and so forth.

We need visuals that pop, Gemma, so if you and your partner could dress up as ponies, or people being hunted mercilessly by ponies past all hope and reason, that would be ideal.

I eagerly await your draft.

Very truly yours,

Ken at Popehat

24

Minnesota Court Rules That Criminal Libel Statute Is Unconstitutional

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A few states retain archaic statutes making some types of libel a crime. They're rarely used. They show up fairly regularly in stupid legal threats, and very occasionally in politically motivated harassment prosecutions.

Yesterday the Minnesota Court of Appeals struck down that state's criminal libel statute.

Minnesota's statute criminalizes statements that "expose[] a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation." It offers a defense of justification for a few exceptions:

Violation of subdivision 2 is justified if:

(1) the defamatory matter is true and is communicated with good motives and for justifiable ends; or

(2) the communication is absolutely privileged; or

(3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or

(4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or

(5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.

Isanti County prosecuted Timothy Robert Turner for violation of this statute when he posted malicious ads on Craigslist in the name of his ex-girlfriend and her daughter soliciting strangers for sex. He added their cell phone numbers. Timothy Robert Turner is scum.

The Minnesota Court of Appeals agreed that Turner's actions were contemptible and defamatory. But they found that the statute violates the First Amendment. First, it doesn't recognize that truth is an absolute defense to defamation — under the statute, you could be criminally prosecuted for making a true statement without "good motives." Second, it criminally punishes false statements about public figures or matters of public concern without requiring the government to show that the statements were made with actual malice — the long-standing standard protecting such speech.

Notice that the loathsome Timothy Robert Turner's speech was unquestionably false, and wasn't uttered about public figures or matters of public concern. But the Court overturned the statute in his case and reversed his conviction anyway. Why? In First Amendment cases, when a statute is so defective that it prohibits a substantial amount of constitutionally protected speech, courts will allow a litigant to challenge the entire statute even if the particular litigant's speech could constitutionally be punished. That's sometimes called the overbreadth doctrine. Here, the state conceded that the statute was overbroad (and possibly even conceded that it's substantially overbroad — it's hard to tell). The state asked the court to employ a remedy in this situation — to construe the statute narrowly to make it constitutional, that is, to say "Minnesota can only use this statute in cases involving false statements, and only by proving actual malice in cases involving public figures or matters of public interest." Courts are supposed to do that when they reasonably can rather than strike down an entire statute. Here, the court not unreasonably found that they'd have to fundamentally rewrite the statute to save it, and refused to do so. The line between narrowly construing a statute to save it and "rewriting" a statute is not perfectly clear.

The bottom line: the Minnesota court recognized that an archaic criminal libel statute was invalid when it didn't include the free speech protections afforded modern civil defamation defendants.

Eugene Volokh submitted a clearly effective amicus brief. Timothy Robert Turner escapes conviction, but hopefully never gets a job or relationship again thanks to Google.

86

Post-Holiday Deadly-Sin-of-Pride Open Thread

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So you wrote a blog post that you thought was really good, but somehow everyone missed it. Or you just got a good column published. Or your kid won the Hunger Games. Or your dog learned to shake hands. Or you got your name in the newspaper for rescuing a squirrel. Or you're up to something you think is cool.

Tell us in this thread! I declare that the cultural norms against boasting do not apply herein, to the extent they ever apply on the internet.

Please note this is not a thread about recriminations from other threads or places.

169

Happy To Be Here

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The first thing you need to know about secure psychiatric facilities is that their bathrooms smell strongly of pee.

That may not seem remarkable to you. Many bathrooms smell of pee. But the facility in which I was a guest this time last year was notably immaculate in every other way. A lot of time and attention went towards making it clean and welcoming. Yet the private bathrooms — one to a two-person dorm room, no lock — always smelled of pee. That's because there's an elaborate metal cage built around the workings of the toilet, like one of those Hannibal Lecter masks. This makes the toilets very difficult to clean. Hence, the constant smell of pee.

The people who run the facility protect the toilets like that so that you won't disassemble them and use the pieces to hurt yourself. My wife would tell them that this concern dramatically overestimates my home improvement skills, but I guess they want to be careful. It seems to me that if you take the time and effort to disassemble a toilet with your bare hands, you're committed enough to be allowed to do to yourself as you see fit. To date my view has not prevailed in the psychiatric community.

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85

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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