Author: Ken White

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.

45

No Good Deed: How Jose Arcaya Ph.D. Esq. Went From Suing a Client Over A Yelp Review To Complaining About Scott Greenfield

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Jose Arcaya Ph.D., Esq., Etc. is a lawyer/psychotherapist in New York. Many lawyers have to assume the role of psychotherapist; Arcaya appears to have actual qualifications.

One of those qualifications is sensitivity, apparently. A former client left a negative review on Yelp. The review primarily complained about how Arcaya treated the client:

I hired Arcaya to help with a case. I asked him at the outset if he had handled these matters before and he said yes. The ensuing performance suggests otherwise.

When I mentioned his truly pitiful performance he implied that it was my fault. When i reminded him that he was the lawyer and hired to do a professional job he made fun of my medical issues. Absolute scum.

This is America, so you know what happened next: Arcaya sued the client for defamation, representing himself pro se. He demanded the removal of the Yelp review, $80,000, and the cost of his time. The complaint is a bitter denunciation of the client and a smirking recitation of his past misfortunes. Arcaya demands satisfaction for being called "absolute scum" and for the statement that he "made fun" of his client's medical issues.

The statement that Arcaya is "absolute scum" is a classic example of insult, rhetorical hyperbole, and opinion: it can't be proved true or false. The statement that Arcaya made fun of his client could be a potentially actionable statement of fact, though ultimately that's probably a matter of opinion as well. Arcaya represented his client in an attempt to get him academic accommodations based on the client's disabilities arising from brain damage. In the course of an email dispute about fees, Arcaya said:

In your dreams. You sorted me $2000. I got just $3k for the article 78. The deal had been $5K. Memory problems.

JMA

Was it over-sensitive of the client to interpret "memory problems" as a snide reference to his disability? Maybe. The tone of Arcaya's complaint certainly suggests he's the sort of person who would indulge in such an insult. Whether over-sensitive or not, it's certainly not as freakishly over-sensitive as Arcaya suing over this Yelp review.

The client reached out to me, and I reached out to my friend Scott Greenfield. Scott wanted to try to talk Mr. Arcaya back from the precipice. That effort was unsuccessful. Rather than grasping that he was engaged in a self-destructive flirtation with the Streisand Effect, Arcaya doubled down. He subpoened Scott Greenfield for a deposition. No, really. Here's the subpoena. Challenged, he filed a bizarre rant justifying the subpoena. He spun a tale that Scott threatened him with a "gang" of thousands of internet users. It sounds like a strange person's misunderstanding of a point Scott often makes: if you act like an ass in the effort to suppress speech, the Streisand Effect will treat you unkindly.

Arcaya also offered rather comical explanations for why his claims had merit. He argued that "absolute scumbag" is not opinion:

12. Regarding the matter of whether "absolute scum bag" should be deemed defamation per se rests with the present court. Mr. Boka tTots out a series of cases indicating the word "scum" and "scum bag" do not fall in that category. However, by adding the word "total" he impugns everything about me, including character and capacity to carry-out legal work. It coincides well with the Dillon standard of defamatjon per se: a maliciously intended attack on my professional capabilities, an all encompassing put-down (i.e., "absolute scum", not just "scum bag" Or "scum"), questionable evidence supporting the denunciation (my memory quip), and outlandishly using my statement "Memory problems" completely out of context.

Arcaya appears to be an asshole, but not, I emphasize for legal purposes, a total asshole.

But Arcaya wasn't done yet. Outraged by Scott's interference, he filed a bar complaint against him. The meat of that complaint is here. Assuming that there's no "disturbing querulous screed" font, Arcaya handwrote it. Aracaya speculates that when Scott Greenfield mentioned talking to a blogger who was interested in this story, he had invented the blogger.

Nope.

I wrote to Mr. Arcaya, seeking comment. I feel comfortable saying it was unrewarding for both of us. He seemed paranoid:

I can't really give any comment since the matter is in court. Would like to know, however, how this information ended up in your hands. Perhaps later we can talk/write in greater detail.
JMA

When I asked whether that was a threat, he responded:

No I don't. I wouldn't subpoenaed you, but became curious as to who informed you of this case given that it hasn't even been heard? What was their point or intention?
JMA

The intention is simple: to call out bad behavior and deter censorious thuggery.

Maybe Mr. Arcaya is a good lawyer and a good therapist. I don't know. I do know that his bizarre course of conduct here makes him someone I would never hire or recommend under any circumstances whatsoever.

I feel guilty because I got Scott into this, hoping to help the client here. But Scott's a good man, and I'm sure he'll keep helping people. He just may remember a little quicker the maxim "no good deed goes unpunished."

81

Garry Trudeau Punches Down

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Last week cartoonist Garry Trudeau received the George Polk award for journalism. It's an award named in memory of a journalist murdered while covering a war. Trudeau used the opportunity to say that while murdering journalists is sub-optimal, journalists need to rethink offending people:

What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

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40

DEA Orchestrates Disinformation Campaign To Conceal Surveillance Powers

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In Neal Stephenson's brilliant Cryptonomicon, a protagonist works for a shadowy Allied unit called "Detachment 2702." Detachment 2702 creates elaborate fake evidence to offer explanations of how the Allies learned of German movements, thus concealing that the Allies had cracked the Enigma code. Though fictional, the Detachment is based on actual World War II tactics. The Allies did things like send spotter planes to places they knew German ships would be to fortuitously "spot" them, and reportedly sent a fake radio message of congratulations to a non-existent spy to suggest a source for other intelligence.

You expect the government to use secret surveillance and disinformation campaigns against a wartime enemy. You probably don't expect the government to use secret surveillance and disinformation campaigns in court against its own citizens.

You should.

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123

Ten Short Rants About #PizzaMemories

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This is the second in a new series, Ten Short Rants.

Memories Pizza, a modest shop in a small town in Indiana, has experienced a reversal of fortune. Plucked from obscurity, it became a symbol of intolerance: to some, a symbol of anti-gay intolerance, to others, a symbol of religious or viewpoint intolerance. Then, after death threats and a barrage of fake orders and denunciations, it closed down, and then got ludicrously rich.

You already have a strong viewpoint, most likely. So do I.

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17

The Heckler's Veto: Alive And Well

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Last week the Supreme Court declined to hear Dariano v. Morgan Hill Unified School District, a Ninth Circuit case that held that a school district could stop high school students from wearing American flag t-shirts because other students celebrating Cinco de Mayo had reacted to them violently. I wrote about the case when the incident happened in 2010.

The Supreme Court's refusal to hear the case is not necessarily a bad thing for free speech. The Court, in recent years, has reliably upheld high schools' power to censor, and there's good reason to fear that it would have done so again here.

The Ninth Circuit said it wouldn't second-guess the leadership of Live Oak High School, which concluded that some students wearing American flags on Cinco de Mayo might provoke violence from other students. The record supports that fear, and I don't dispute the school administrators' concerns. What I dispute is the notion that it's acceptable to suppress core protected speech because some bad actors may or may not react violently to it. That's the classic "heckler's veto" — the idea that miscreants can govern whether or not I get to speak through their reactions to me. When possible the rule of law should protect the speaker, not indulge the bad actor, or else the law is nothing but an incentive to act badly.

Dariano is not an anomaly. Particularly in the security-obsessed wake of 9/11, courts have been deferential to the state's fears of violence. A more recent Ninth Circuit case illustrates the point. In Seattle Mideast Awareness Campaign v. King County, the Ninth Circuit upheld King County Metro's decision to decline advertisements about the Isreali-Palestinian conflict. Metro had initially accepted this advertisement:

ISRAELI WAR CRIMES
YOUR TAX DOLLARS AT WORK
www.Stop30Billion-Seattle.org

This is America, and we're outraged by people expressing opinions we don't like. That's fine, as far as I'm concerned, if we express our outrage through contrary opinions. But too many of think that bad opinions justify bad behavior. So instead of debate we get threats:

Before the ad ran, a local television station broadcast a news story about the ad’s approval, which provoked an unprecedented, hostile response. Metro’s Call Center, accustomed to managing an average of 50 to 80 emails per day, received 6,000 emails over the span of ten days, almost all of them urging the County to pull the ad. The messages varied in tenor, but several expressed an intent to vandalize buses or disrupt service. For example, one message said: “AN ATTY WHO SAYS THE SIGNS ARE PERMITTED UNDER THE FIRST AMENDMENT IS FORCING ME TO CONDUCT VIOLENCE JUST TO PROVE THAT I AM REALLY UPSET AT THESE HORRIBLE WORLD WAR2 KINDS OF HATRED SIGNS.” Another stated, “I think I will organize a group to ‘riot’ at your bus stops.” Metro’s Call Center also received a deluge of angry telephone calls. One repeat caller promised to block a tunnel to stop buses from running, while another said that “Jews would take physical action” to prevent the ads from going up.

. . .

As the uproar mounted, Metro employees became unable to read or listen to each message, much less respond to all of them. Metro officials tried to identify the most disturbing emails and phone calls for purposes of investigation by law enforcement. This process brought Metro’s internal operations to a halt.

Note that, in this particular instance, the message provoking the outrage was "liberal" and the violent threats "conservative."

Metro reacted by re-interpreting its regulations to exclude all political or ideological advertisements. That ban applied not only to the advertisement described above, but to other pending ads from the other side like this:

PALESTINIAN WAR CRIMES
YOUR TAX DOLLARS AT WORK

The district court rejected the advertisers' First Amendment lawsuit, and last month the Ninth Circuit — in an opinion written by Paul Watford, a former colleague and one of the smartest people I know — upheld that decision and endorsed Metro's new policy.

The Ninth Circuit's decision turns on the distinction between a public forum and a limited public forum. The First Amendment makes it very difficult to limit speech in the former, but easy in the later.

The Supreme Court has classified forums into three categories: traditional public forums, designated public forums, and limited public
forums. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee (ISKCON), 505 U.S. 672, 678–79 (1992). In traditional and designated public forums, content-based restrictions on speech are prohibited, unless they satisfy strict scrutiny. Pleasant Grove, 555 U.S. at 469–70. In limited public
forums, content-based restrictions are permissible, as long as they are reasonable and viewpoint neutral. See id. at 470.

That's why the government can prevent people from annoying you in the airport, but not in (for instance) the park.

The Ninth Circuit decided that Metro's bus advertisements were only a limited public forum, which effectively determined the result. In doing so the court dissented from decisions by other Circuits. Noting that Metro's rule prohibits content that "is so objectionable under contemporary community standards as to be reasonably foreseeable that it
will result in harm to, disruption of, or interference with the transportation system," the court — by explicit analogy to school free speech cases — found that standard content-neutral and sufficiently definite and objective. The court also found that the record supported applying the ban in this instance:

The County identified three types of potential disruption, each of which is supported by the record: (1) vandalism, violence, or other acts
endangering passengers and preventing the buses from running; (2) reduced ridership because of public fear of such endangerment; and (3) substantial resource diversion from Metro’s day-to-day operations.

The court also rejected the concept that Metro should have responded to threats through law enforcement action, saying that under the lenient standard applicable to limited public fora the government need not apply the least restrictive means of achieving the goal of safety.

Finally, the court rejected the argument that Metro's policy effectively granted a heckler's veto. The court's logic is odd: it suggests that the heckler's veto is not a concern because although the ban is not content-neutral (because it singles out speech about the Israeli-Palestinian conflict), it's viewpoint-neutral because it bans all points of view on that subject.

The “heckler’s veto” concerns raised by the dissent would be troubling in a traditional or designated public forum, but
they do not carry the same weight in a limited public forum. Excluding speech based on “an anticipated disorderly or violent reaction of the audience” is a form of content discrimination, generally forbidden in a traditional or designated public forum. Rosenbaum, 484 F.3d at 1158. In
a limited public forum, however, what’s forbidden is viewpoint discrimination, not content discrimination. That does not mean “heckler’s veto” concerns have no relevance in a limited public forum: A claimed fear of hostile audience reaction could be used as a mere pretext for suppressing
expression because public officials oppose the speaker’s point of view. That might be the case, for example, where the
asserted fears of a hostile audience reaction are speculative and lack substance, or where speech on only one side of a contentious debate is suppressed.

That strikes me as a serious misreading of the danger of a heckler's veto. A heckler's veto is not just harmful when it prohibits discussion of one viewpoint; it's also insidious when it drives a particular subject from a forum entirely. Here I agree with Judge Christen, who dissented in this case:

The court’s opinion suggests the government may open and shut a forum, willy-nilly, in response to public uproar—a particularly dangerous precedent in light of modern technology. Emails, text messages, and tweets can zing through the airwaves to and from countless devices in a matter of seconds, generating scores of impetuous responses just as fast. Given today’s modern and often anonymous communication technology, public outcry can be frequent and
fleeting. Granting the government license to close a forum it previously made open in response to such outcry confers broad power on hecklers to stamp out protected speech they find objectionable.

That's exactly right. Anonymous threats are an increasingly common and popular response to controversial speech. Technology makes them minimal-cost and nearly without risk, except for the lazy or sloppy. Decisions like this make them effective. Moreover, this decision implies that even a non-threatening angry response can be effective — if Shouty McAngrypants, talk show host, encourages a barrage of listener telephone calls to a public agency, this decision seems to endorse the decision to yank the subject from a limited public forum rather than endure the calls.

Dariano's message might be taken as "if you don't like the message on your high school classmate's t-shirt, start a rumor that someone's going to kick the shit out of him." This decision's message is "if you don't like the message in a limited public forum, send anonymous threats or orchestrate a mass response." These are the wrong incentives. Certainly government can strive to protect citizens from harm, and can try to preserve its own functions. But stopping expression to indulge angry people should be the last resort, not the first. Americans need too little incentive to act badly in the face of speech they don't like.

39

Nobody, Including Tom Cotton, Knows What Tom Cotton Is Saying About "Corruption of the Blood"

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Senator Tom Cotton (R-AR) is in the news this month. For reasons that passeth understanding he's been offered up as a spokesperson for the 47 Republicans who wrote a letter to Iran.1 Today I noticed a number of links to 2013 reports asserting that Sen. Tom Cotton offered an amendment to a bill that would allow imprisonment without due process of the relatives of the targets or Iranian sanctions. The Huffington Post's Zach Carter may be Patient Zero on this idea:

WASHINGTON — Rep. Tom Cotton (R-Ark.) on Wednesday offered legislative language that would "automatically" punish family members of people who violate U.S. sanctions against Iran, levying sentences of up to 20 years in prison.

. . .

Article III of the Constitution explicitly bans Congress from punishing treason based on "corruption of blood" — meaning that relatives of those convicted of treason cannot be punished based only on a familial tie.

That story is getting more play this week because of the controversy over the Republicans' Iran letter, and the phrase "corruption of the blood" is on many a lip.

The proposed language, as described, struck me as an unusual thing for a Senator to do, even if the Senator graduated from Harvard Law School and therefore is not entirely responsible for his actions. Is this real? Or is this another case of journalistic malpractice on legal matters?2

The answer appears to be that nobody in this story understands what's being talked about.

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37

Incessant Sewer-Dweller LegalMatch Has A Cunning Plan To Get My Business

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Late yesterday I saw a new email in my inbox. The subject line caught my eye:

Son under indictment

A new case? One never knows. I opened it.

I found not a new client, but an old friend: one Steve Kramer of LegalMatch, a "service" that purports to help match clients to lawyers. I've written before about emails from Steve Kramer and LegalMatch in unflattering terms. For reasons I cannot recall I previously did not name them; I referred to them with thematic accuracy as Feculent Q. Pus-Crust of the Society for Cornholing Unsuspecting Children. I'm naming them now.

Feculent — pardon me, Steve — has continued to spam me even after threatening me with litigation for criticizing him and even after I reminded him that he was spamming someone he had previously threatened.

Here are some of the email subject lines Steve Kramer has sent over the last two years:

Son under indictment (3/11/15)

My son has been charged with statutory rape (11/25/14)

intent to distribute (11/13/12)

felony arrest (1/4/12)

No, Steve Kramer's son is not — so far as I know — a one-man crime wave. Rather, Steve Kramer and LegalMatch use deceitful clickbait email subjects to get lawyers to look at their spam. As his latest says:

Ken

Let me know whether the following snap shot of some of our recent financially capable LA area criminal defense clients looks like a fit.

Cordially,

Steve Kramer
For Legal Match
310-990-3026

It's nice that Steve Kramer is so forgiving that he's still first-naming me after I've sassed him and written mean posts about him.

Emails from Steve-O and Legal Match contain a sort of list of client inquiries that consumers have apparently left on LegalMatch.

EX FELON WITH POSSESSION OF FIREARM
BELL, CA 02/16/2015 C154733487378

FREE MY SON
AUGUST F. HAW, CA 02/16/2015 ✔ C154721465270

VIOLATION OF PROVATION
SAN FERNANDO, CA 02/15/2015 ✔ C154646769498

LEAVING THE SCENE OF A ACCIDENT
LYNWOOD, CA 02/15/2015 ✔ C154643116086

2SUSPECTS TRAFFICKING 48LBS OF DRUGS
LOS ANGELES, CA 02/14/2015 ✔ C154536359337

Steve and LegalMatch represent in their solicitation that somehow they have determined that these people are "financially capable" — meaning, I guess, that they can afford to hire a lawyer. In any litigation I look forward to discovering what methodology they used to evaluate the assets of the "violation of provation" guy. They also represent that these are "criminal defense clients." Yet the emailed lists includes entries like this:

FREON EXPOSURE WORKING AT GENERAL DYNAMICS 80'S.
WALNUT, CA 02/09/2015 C154071310246

Perhaps this person has been criminally charged with exposing himself or herself to freon at General Dynamics in the 1980s. I presume they will explore a statute of limitations defense.

LegalMatch views its system — where people describe their cases, to be reviewed by potential lawyers — as a service to the lawyer-seeking community. Whether it is also a boon to the law enforcement community remains to be seen. It encourages customers to leave entries like this one in the most recent solicitation email:

ACCUSED OF MURDER OCCURRED IN SELF-DEFENSE ROLLING HILLS ESTATES, CA 02/10/2015 ✔ C154102776952

Who read that? Well, apparently, any LegalMatch lawyer with access to that client database, and any prospective LegalMatch lawyer to whom Steve Kramer sent the email. All of those people now know that there is a person accused of murder in or near Rolling Hills Estates, California, in February of 2015, who says they did kill the person but did so in self-defense. Did they get legal advice before making that disclosure? Did they think that the disclosure would be kept confidential? Did they know it would be sent out in spam emails? Would a court treat such an entry as privileged, despite how recklessly it is being bandied about? Is LegalMatch certain that it didn't sent this information to anyone with connections to the victim, or the victim's family's lawyers, or the prosecutors, or the investigating officers, or the media? Do you think that — assuming this is a real case — the media would be interested in hearing that the accused was admitting to having killed the victim but was asserting self-defense?

Of course, if that entry is entirely fabricated, I suppose it's not so much an amoral and reckless disclosure by LegalMatch as it is false advertising.

I've written to Steve Kramer, LegalMatch's press office, and their general counsel asking some questions.3 Among them is this question — does LegalMatch think that it is not bound by the CAN-SPAM Act, which (as LegalMatch's blog will tell you) prohibits misleading subject lines and requires clear opt-out-of-this-spam systems?

LegalMatch is not the only turd in the beclouded punchbowl of the legal marketing community. But, despite vigorous competition, it is one of the oldest, most noisome, and most persistent turds. Steve Kramer has been pestering the unwilling about LegalMatch for years, and LegalMatch has been using sleazy tactics (and promising to improve them) for a decade.

Yet LegalMatch continues to thrive. That means some lawyers out there are paying them. Those lawyers are equally responsible for perpetuating these practices. And the clients — oh, the clients. Citizens, know this: if you hire someone through LegalMatch, you're hiring someone desperate or stupid or cynical enough to accept this bad behavior.

Back in 2012 I told Steve Kramer "Remove me from your spam list forthwith." Perhaps this post will help get results.