A Tale of Two Consequences For Censorious Asshattery

The wheel turns slowly, my friends — but it turns.

Here are two stories of the wheel grinding down censorious jackasses.

Mayor Jim Ardis Costs Peoria Taxpayers $125,000 Plus Legal Fees

Remember Peoria Mayor Jim Aris? He's the jackass who took offense to a satirical Twitter account and used a crony cop and a compliant judge to get a search warrant to harass the satirist.

Now Peoria has agreed to pay $125,000 to settle the satirist's civil rights suit. Peoria taxpayers foot that bill, along with the no doubt much larger legal bill for the city's lawyers.

Now, Jim Ardis doesn't face financial consequences personally. But there's hope he'll suffer long-term reputational and political consequences:

The actions against Daniel unleashed a torrent of negative backlash directed at Ardis and the police, a controversy dubbed "Twittergate" by many in the central Illinois community. Daniel's lawsuit against Ardis and several city officials accused them of violating his First and Fourth amendment rights. Legal experts said political satire is a protected right of free speech.

The settlement also requires Peoria to issue a directive to its Police Department saying the law prohibiting the impersonation of a public official — the same statute the city tried to use against Daniel — does not apply to satire.

Please join me in proclaiming that #JimArdisIsAnAss.

MedExpress Ordered To Pay Lawyers Who Responded To the Popehat Signal

You may remember that in 2013 I put up the Popehat Signal to seek Ohio lawyers willing to fight back against Med Express, an Ebay seller filing frivolous lawsuits attacking people for bad reviews. Jeff Nye and Tom Harren stepped up. Your rights, and mine, depend upon lawyers like them doing things like that.

Working together with Paul Alan Levy at Public Citizen, they defeated MedExpress and convinced a court to order MedExpress to pay their fees. Paul has the story here. It's very hard to get courts to award attorney fees as a sanction for frivolous litigation. But it's great when it happens. Jeff and Tom deserved to get paid for their efforts, and the sanction should help act as a deterrent against other thuggish plaintiffs.

Satire vs. Potentially Defamatory Factual Statements: An Illustration

Earlier today, author John Scalzi posed this question:


I am incapable of passing a question like this without answering it. Moreover, as luck would have it, I just finished a brief on the subject yesterday.

So: here is the short answer. The book title is almost certainly parody protected by the First Amendment, because an audience familiar with the circumstances would recognize it as parody and not as an assertion of fact.

Now: cry havoc, and let slip all the ones and zeroes.

The book cover — here on Amazon — has its roots in an ongoing war of words between Theodore Beale, self-styled as Vox Day, and John Scalzi. I will spare you an assessment of who started it or who is continuing it. Nor will I discuss at any length how I generally like Scalzi and his writing (though he's considerably to the left of me) and how I hold Beale and his admirers in low esteem. That's my bias.

Some time ago, Scalzi wrote an essay in the voice of a rapist thanking conservative politicians who seek to limit the ability of rape victims to secure abortions. Nobody rational could interpret it as Scalzi admitting to rape. Whether you agree with it or not, it's clearly a satirical broadside against a particular political viewpoint that parses which rapes are "legitimate" and which aren't.

Beale and his admirers, as a rhetorical device, launched a tendentious and tiresome meme treating the piece as serious and accusing Scalzi of actually having done the things he talked about in the satirical piece. Scalzi discussed it here.

Amazon self-publishing has become a popular method of pandering to audiences. Recently various figures have begun publishing elaborate manuals on how brave people can stand up to the terrible Social Justice Warriors who will mock and criticize them and such. To me this is a paradox: if you need a manual to stand up, no manual will help you. But never mind that. This e-book — titled "John Scalzi is a Rapist," and echoing various memes that Beale followers like — is part of that trend.

Here's why it's almost certainly protected parody.

The Law

Only a statement of fact can be defamatory. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.)

How do you tell the difference? A court will look at the "totality of the circumstances" — that is, not just the statement in isolation, but all the facts and circumstances surrounding and leading to it. The court will also look at the statement in the context in which it was made, not in the abstract. Finally, the court will look at the statement from the perspective of the audience to which it was directed, taking that audience's knowledge and understanding into account. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-10.)

That's why satire and parody are protected even when directed at a fairly narrow audience. For instance, when the proprietors of WorldNetDaily sued Esquire for a parody suggesting they were withdrawing one of their birther tomes, Esquire won because the piece was viewed from the perspective of someone familiar with Esquire's history of satire and WorldNetDaily's history of nuttery, not from the perspective of a person encountering all these figures for the first time. Similarly, my post about the case is protected satire even though I made up excerpts from the D.C. Circuit opinion suggesting that WorldNetDaily staff routinely molests walruses.

Many other factors also contribute to determining whether something should be treated as hyperbole, insult, and satire or as a statement of fact. Those include the tone (measured tones are more likely to be taken as fact, fiery and bombastic tones as opinion), anonymity (anonymous or pseudonymous statements are less likely to be treated as factual), the formality, the intelligibility, whether it is labeled as fact, whether the author suggests a basis for knowledge or evidence to support the statement, whether the statement is specific rather than general, and whether the statement is in the context of a dispute that one would expect to generate heated rhetoric. California courts have recognized that internet dwellers are less likely to view statements online as assertions of actual fact, especially when they are in a forum known for bloviating. That doesn't mean that everything on the internet is automatically opinion rather than fact: things on the internet can still be treated as fact when they contain factors like assertions of lack of bias, assertions of specialized knowledge, labeling as fact, specifics, signals of reliability and factual nature, etc. (Bentley Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 433.)

So. If someone wrote an article saying "Ken White's legal analysis should be disregarded because dresses up in a rubber suit on the weekend and hunts ponies with a handmade crossbow," and says it on their trash-talking blog, to an audience that knows them and knows about my blogging here, it's almost certainly parody, because the relevant audiences would be familiar with our in-joke about responding to spam emails with rants about ponies and would therefore not take it seriously.

The Facts Here

Here the factors point very strongly to the book being treated as parody, and protected by the First Amendment, rather than as a defamatory statement of fact. With all respect to Scalzi, his question is wrong: you can't analyze the book title in isolation. You have to look at it in the context of the whole. In that context, the intended audience (both fans of Beale and fans of Scalzi) would recognize it as a reference to Beale's tiresome meme. Plus, the Amazon description explicitly labels it as "a blazingly inventive parody," and the descriptive text is mostly nonsensical and evocative of ridicule of "SJW" concerns, and references some of the topics that anger Beale's coterie in connection with Scalzi like the Hugo Awards.

I think this one is protected parody, and I don't think it's a very close call.

Could the meme be defamatory if uttered in a different context? Yes, potentially.

Patterico Prevails: Vexatious Legal Attack on Speech Fails

For the last few years I've had the privilege of acting as pro bono counsel for Patrick Frey, who blogs as Patterico, in defense of a thoroughly frivolous federal case filed to censor his speech. That's given me the invaluable opportunity of working with the redoubtable Ron Coleman as co-counsel both in the district court and the Ninth Circuit. You can catch up on the legal issues in the case here and here.

Now, after years of litigation, I'm pleased that the case has ended successfully for Patrick. As Patrick announced yesterday, he and plaintiff Nadia Naffe have settled the matter for a walk-away. Patrick retracted nothing and paid nothing, and only waived his fees and costs, and Naffe dismissed the case with prejudice — meaning it can't be refiled.

It's both a good thing and a bad thing. It's a good thing because it's the right result: the case was a blatant politically motivated attack on protected speech. It's bad because it took so much time and work. The flaws in the system it exposed are too extensive for one post, but one thing stands out: the case highlighted the need for a federal anti-SLAPP statute that makes it harder for vexatious litigants to abuse the federal court system. You can track the progress of various proposed anti-SLAPP statutes here. If you want to help make this sort of abuse harder, consider becoming a vocal supporter of state and federal anti-SLAPP statutes. Write your representatives.

Thanks are due to Ron, for leadership and exceptional skill, to Eugene Volokh, for a very strong amicus brief before the Ninth Circuit, and to Patrick, for perseverance and principle.


Prior Restraint of Daily Iberian More Outrageous Than We Feared

Last week I described how District Judge Curtis Sigur issued a broad temporary restraining order at the behest of attorney David Groner imposing clearly unconstitutional prior restraint on the Daily Iberian of New Iberia, Louisiana.

This is not a story where the facts, as they come out, show that everyone overreacted. This is a case where the facts are even worse than initially reported.

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Louisiana Judge Issues Ludicrously Lawless Takedown Order To Newspaper

Attorney David Groner of New Iberia, Louisiana is angry. Those bastards at the Louisiana State Bar took a run at him, but he mostly beat the rap. He only took a six-month suspension, and that suspension is suspended if he successfully completes a year of probation.

But then some jackass on the web forum of The Daily Iberian mouthed off about him, and linked the public document announcing his suspension, just like they had a First Amendment right to do that or something. What's a lawyer to do?

Thank God for compliant judges with quick rubberstamps. David Groner sued, and District Judge Curtis Sigur immediately granted him a temporary restraining order directing the New Iberian to delete the comment, remove the link to the public document, and who knows what else:

In the lawsuit, Groner asked a judge to prohibit The Daily Iberian from publishing on its website any article or story in which Groner is accused of "dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter."

The lawsuit was filed Aug. 25. District Judge Curtis Sigur signed a temporary restraining order the same day the lawsuit was filed in support of Groner's request.

The Daily Iberian has obeyed rather than risk contempt, but is appealing.

Maybe the anonymous comment falsely described the bar proceedings against David Groner. But forcing the paper to take the comment down — not to mention the link to a public document — is nothing short of lawless. First, the paper isn't responsible for the comment as a matter of law under Section 230 of the Communications Decency Act. Second, the judge's order is classic — and classically unconstitutional — prior restraint. If you are defamed, your remedy is to seek damages. Maybe, once a jury has ruled, you can get an order prohibiting the defendant from repeating the thing the jury found to be defamatory. But a pre-trial order directing a newspaper to take something down, including a public document? Obvious prior restraint of the sort that thinking judges reject immediately.

Our rights depend on the judges who are supposed to enforce them. District Judge Curtis Sigur is violating his oath to uphold the constitution. Shame on him.

As for David Groner — well. He's the guy who asked for the prior restraint, including the deletion of a link to a public document about him. How trustworthy is that?

Edited to Add: David Groner had a Facebook post about the paper.

After over 30 years as a subscriber, today I have cancelled my subscription to the Daily Iberian.
For years now, the paper has become a poor choice for area news and certainly is a day or two late on state or national news.

The main reason however is that the paper runs a website that allows anti-Semitic; racist and homophobic rants under the guise of anonymous postings. In addition and in particular, any person in the public view is defamed, attacked and vilified and even when the administrator ( the newspaper) knows of the false defamatory posting, they refuse to remove or censure. Of course there is no way of knowing if the staff at the Daily Iberian is responsible for the postings themselves. They have become smug and arrogant in their claim for " freedom of speech".

I can no longer condone a website that tears at the fabric of our community and therefore have chosen to refuse to buy the newspaper. I have many friends who have previously cancelled their subscription, I now regret it has taken me this long to join them.

Two thoughts: (1) nice scare quotes on "freedom of speech," and (2) don't you think the significant point isn't that you cancelled your subscription but that you sued them and got a lawless court order imposing prior restraint on them?

Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong

Kyle Barella is an immigration lawyer with his own firm. Last week he gave an "exclusive" interview to Breitbart News Network on his views about birthright citizenship and the whole "anchor baby" controversy. That was, of course, his right. He said he thinks that birthright citizenship is being abused and that we should end it. He said so rather mildly, particularly given where he was being quoted.

This is modern America, so naturally someone was upset about his viewpoint and left his law firm a one-star review on Yelp complaining that his ideas are "borderline racist." It's his only review right now. The reviewer — "Amir K." — thinks that Kyle Barella shouldn't be an immigration lawyer because of his views on birthright citizenship:

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Lawsplainer: How Did the Fifth Circuit Narrow Student Free Speech Rights?

Last week, in Bell v. Itawamba County School Board, an en banc panel of the United States Court of Appeals for the Fifth Circuit spent 101 pages arguing over when students can be punished for off-campus speech, and ultimately significantly limited them.

Wait. You expect me to read a 101-page court opinion?

I don't expect you to read all the way through a tweet with big words.

Hey! Attitude! Are you going to explain this?

You expect me to explain a 101-page en banc decision with seven separate concurring and dissenting opinions?

You know you're going to to it.


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Ninth Circuit Harshly Scrutinizes Law Enforcement Leak, Threatens Sanctions Against Department of Justice

What the hell is going on in America?

The federal judiciary — which previously could be counted upon to be relatively complacent in the face of a culture of prosecutorial misconduct — has begun to take notice and harumph and even do something about it. In January a Ninth Circuit panel blasted state prosecutors defending a conviction won with perjury. Ninth Circuit Judge Alex Kozinski has started a blunt public and academic discussion of misconduct as a systemic problem. This week the Fifth Circuit cited prosecutorial misconduct — including federal prosecutors commenting on cases online under pseudonyms — in overturning the federal convictions of some murderous New Orleans police officers.

This is a trickle, not a tide. But normally federal judicial recognition of the problem of misconduct is a parched desert; any relief is notable. And in the last two months, judges have even questioned one of law enforcement's most cherished methods of gaming the system — leaks to the press. The situation raises questions not just about government misconduct, but about how the press addresses such misconduct.

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If You Disagree With This Post, You're Joining A Bullying Lynch Mob

We name things based upon how we feel about them. We also feel about things based on how we've named them.

Politicians understand this. When they want to downplay the invasion of a sovereign nation, they call it an "uncontested arrival." When they justify torture of the sort that we hanged people for within living memory, they call it "enhanced interrogation technique." Language manages attitude.

Politicians and priests intentionally deploy language to guide thought. But we all do it unintentionally every day, shaping the culture with the language we choose.

This can lead to unintended consequences. We may mean to say that words should be rebutted with other words rather than with official coercion, and that the best response to speech we don't like is more speech. But the words we choose can subtly promote the understanding that words are violent acts, and therefore something suitable for regulation.

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My Bad Use of Force Decision Shows You Shouldn't Second-Guess My Use of Force Decisions

The Blaze, Glenn Beck's tequila-sweat dream-diary, repeats a law enforcement talking point today. The talking point — "scrutinizing use of force will kill cops" — is rarely served this explicitly or uncritically.

The story's about a Birmingham police officer who got pistol-whipped at a traffic stop. A suspect from the car he stopped approached him aggressively, cold-cocked him, and pistol-whipped him. Cold-hearted bystanders took pictures of him bleeding on the ground rather than helping. Thankfully, the officer will recover. But he's saying that he didn't use force in time to defend himself because of fear of how the media might treat him:

"A lot of officers are being too cautious because of what's going on in the media," said the officer, who asked to remain anonymous for the safety of his family. "I hesitated because I didn't want to be in the media like I am right now."

The Blaze pointedly notes:

The suspect in question, Janard Shamar Cunningham, is a black man and was seemingly unarmed during the incident.

Police — eagerly quoted by The Blaze — are using this to complain about media coverage of their actions:

Heath Boackle, a sergeant with the Birmingham Police Department and president of the city's Fraternal Order of Police, said Thursday that cops are "walking on eggshells because of how they're scrutinized in the media."

Police Chief A.C. Roper sees the episode — as well as the reaction, including celebratory and vitriolic comments posted online alongside images of the wounded officer — as symptomatic of a larger problem, in which some don't respect law enforcement.

"The nobility and integrity of policing has been challenged," Roper said. "As a profession, we have allowed popular culture to draft a narrative which is contrary to the amazing work that so many officers are doing everyday across this nation."

Here the typical subtext is closer to plain text: reporting on, scrutinizing, and criticizing officer use of force puts officers in danger by making them hesitate and second-guess themselves.

This is monstrous gibberish.

A cop made a bad use of force call. Thank God he lived. But a bad use of force call is not a good argument for less scrutiny of use of force. "I have trouble making decisions because of fear of how I will be treated in the media" does not convey "I'm capable of good judgment about the use of force, so you should trust me more."

Chief Roper complains about "popular culture" drafting a "narrative." What he means is that he's mad that there has been a mild drift away from the existing narrative — the law and order (and Law & Order), thin-blue-line narrative in which the cop is presumed to be the good guy and force is presumed to be righteous, a necessary tool for discovering truth and punishing evil, thwarted only by dishonest lawyers and publicity-hungry politicians. That narrative has been — and remains — overwhelming.

Police work is not, contra Chief Roper, an occupation of nobility and integrity, any more than any other profession is. It's a profession made up of noble and ignoble people, honest officers and liars, decent folks and utter thugs. It does not deserve the cultural free pass we've given it. The complaints here show how extensive that free pass is. Consider: the officer and his supporters aren't saying that he hesitated using deadly force on a human being because using deadly force on a human being is something to be done with great care. They're saying he hesitated — and that other officers might hesitate — because of how it might look on the news.

If "maybe I shouldn't kill this guy unless I have a good reason" isn't an adequate motivator to govern deadly force — and our history suggests that it isn't — I'm okay with "maybe I don't want to be on the news" stepping in to help.

Edited to add: I took some shots at The Blaze here, but the CNN story linked above is just as cop-deferential.