Category: Law

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.

36

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.1 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.

27

Update: Dr. Mario Saad Asks Court To Reconsider Prior Restraint On Epically Ridiculous Grounds

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Last week I wrote about how a Massachusetts federal court rejected Dr. Mario Saad's bumptious demand for a temporary restraining order forbidding the American Diabetes Association from publishing statements of concern about his scientific articles.

As I said, that was not a close call. But Dr. Saad, and his lawyers, are determined, in the sense of "completely out of their minds." They filed a motion for reconsideration, supported by what I will call, in an excess of mercy, a legal brief.

Federal courts strongly disfavor motions for reconsideration; generally you have to cite facts or law that you could not have cited before. Dr. Saad doesn't. Dr. Saad argues . . . well. I won't characterize it. Let me quote it.

Narrowly focusing on the expression of concern – this is speech that has already been published both online and in print format and has been disseminated to countless individuals. Dr. Saad’s request for injunctive relief, asking this Court to order this existing speech to be removed from publication, obviously does not constitute a prior restraint.

In other words, Dr. Saad thinks that when he asks the Court to order the ADA not to publish items in its print magazine, and to take down its online content, that's not "prior restraint" because the ADA has already gotten to speak once.

Dr. Saad does not cite a single case relating to the doctrine of prior restraint, the core issue he is arguing about.

That is not an argument I'd expect from a lawyer. That is an argument I'd expect from a guy trying to start a fight in a bowling alley. That is an argument that shows that the advocate making it either (1) has no idea what prior restraint is and is too lazy and/or stupid to look it up, or (2) thinks the judge is very, very gullible, or (3) both.

As the ADA points out with remarkable patience, that's not what prior restraint means. Prior restraint doesn't mean "once they've said it once you can keep them from saying it again." Prior restraint is when a court uses the force of law to limit speech before a final determination of whether it is lawful. That's exactly what Dr. Saad is asking for.

I cannot immediately recall a lawyer making an argument this breathtakingly ridiculous. I hope that the judge sua sponte imposes sanctions.

Edited to add: A bowling alley line in a prior restraint post wasn't a Lebowski reference. I'm not that clever.

39

Darren Wilson and the Benefit of Doubt

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The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.

The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.

Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.

I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.

Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.

Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.

The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.

It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.

66

A Few Comments on the David Petraeus Plea Deal: What Money And Connections Buy You

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David Petraeus, who suffered a fall worthy of a Greek tragedy when was caught leaking classified information to his biographer-girlfriend, has reached a plea deal with the feds, in the person of the U.S. Attorney's Office for the Western District of North Carolina.

As of now two documents are available online. There's the Information, which is the charging document the feds use when grand jury indictment is not required or when the defendant waives that right. There's also the factual basis — the narrative of facts to which Petraeus will admit. These documents reveal that Petraeus has agreed, in advance of charges being filed, to take a misdemeanor.

Generally, poor people react and rich people are proactive. Petraeus is sophisticated and has assets; he could afford to hire lawyers to negotiate with the feds before they charged him. As a result, he was able to secure a pretty good outcome that controlled his risks. The feds let him plead, pre-indictment, to a misdemeanor charge of improper removal and retention of classified documents under 18 USC section 1924. That means even if the federal judge who sentences him goes on a rampage, he can't get more than a year in federal prison — and, given that it's a misdemeanor, will very likely get far less. The Factual Basis includes a United States Sentencing Guideline calculation in which the government and Petraeus agree he winds up at an Adjusted Offense Level of 8, which means the judge can give him straight probation.

It is very difficult to get a misdemeanor out of the feds.

Petraeus' factual basis reveals that he could have been charged with much, much worse. The statement discusses his "Black Books" containing his schedules and notes during his command in Afghanistan; those books contained "national defense information, including Top Secret/SCI code word information." (Factual Basis at paragraphs 17-18.) Petraeus, after acknowledging that "there's code word stuff in there," gave the Black Books to his biographer/girlfriend at her private residence. "The DC Private Residence was not approved for the storage of classified information," the statement notes dryly. (Factual Basis at paragraphs 22-25.) He retrieved the Black Books a few days later after she had been able to examine them, and retained them. Thereafter, when he resigned from the CIA, he signed a certification that he had no classified material in his possession, even though he had the Black Books. (Factual Basis at paragraph 27.) Later, when Petraeus consented to interviews with FBI agents2 he lied to them and told them that he had never provided classified information to his biographer/girlfriend. (Factual Basis at paragraph 32.)

To federal prosecutors, that last paragraph of facts is like "Free Handjob And iPad Day" at Walt Disney World. First, you've got the repeated false statements to the government, each of which is going to generate its own charge under 18 U.S.C. 1001, which makes it illegal for you to lie to your government no matter how much your government lies to you. Then you've got the deliberate leaking of top secret/code word defense data to a biographer. An aggressive prosecutor might charge a felony under 18 U.S.C. section 793 (covering willful disclosure of national defense information) or 18 U.S.C. section 798 (covering disclosure of classified communications intelligence materials or information derived therefrom), both of which have ten-year maximum penalties. Those charges don't seem to require any intent to harm the U.S. — only disclosure of information which could harm the U.S. if distributed. Other than that? You better believe there would be a conspiracy count for Petraeus' interaction with his girlfriend.

If Petraeus were some no-name sad-sack with an underwater mortgage and no connections and no assets to hire lawyers pre-indictment, he'd almost certainly get charged a lot more aggressively than he has been. This administration has been extremely vigorous in prosecuting leakers and threatening the press.

So why is Petraeus getting off with a misdemeanor and a probable probationary sentence? Two reasons: money and power. Money lets you hire attorneys to negotiate with the feds pre-charge, to get the optimal result. Power — whether in the form of actual authority or connections to people with authority — gets you special consideration and the soft, furry side of prosecutorial discretion.

This is colloquially known as justice.

Edited to add: Since I wrote this the actual plea agreement has become available. The most notable part:

8. The United States agrees not to oppose the defendant's request that the defendant receive a non-custodial sentence.

9. The parties jointly recommend the imposition of a two-year term of probation.

So, for those of your keeping score at home: Commander of U.S. Forces in a war zone provides classified documents to his biographer/lover? Misdo, two years probation. 25-year-old small-time musician sells half a pound of pot while carrying a gun? 55 years in federal prison.

26

Weekend Censorious Dipshittery Roundup

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You may take the weekend off. I may take the weekend off. But the censorious spirit never rests, friend.

Dateline: England. MP George Galloway has arranged for his lawyers to send legal threats demanding £5,000 [upon information and belief, about $375,000] from Twitter users who called him an anti-Semite. Mr. Galloway, who has pledged to use any proceeds to build a memorial to Saddam Hussein, has been in the news for yes-butting during discussions of the Charlie Hebdo massacre and declaring his district an "Israeli-free zone." Galloway's legal threats are naturally ridiculous — or would be, if they were uttered in a nation with more sensible libel laws.

Dateline: St. Thomas, USVI: Terri Griffiths, the Acting Attorney General of the U.S. Virgin Islands, does a terrific Tony Soprano impression. She threatened to file criminal charges against the Virgin Islands Daily News for calling her after business hours on a cell phone number she provided in order to seek comment on news stories concerning her public responsibilities. It is not clear if she was serious, drunk, unmedicated, or positioning the Virgin Islands as the site of the next Far Cry sequel.

Dateline: Louisiana State University: Logan Anderson, a 21-year-old junior from Texas who is majoring in mass communications, somehow has an incomplete grasp of First Amendment jurisprudence. She penned an opinion piece in the student paper rounding up the usual suspects in support of censorship of predictably douchey social media app Yik Yak. Anderson's piece is notable for unabashed use of a common trope:

Critics of Bach’s argument for censoring the app argued that doing so would violate free speech — the ever-important bastion of people who like to say rude things on the Internet.

Free speech is constitutionally protected. Hate speech is not.

Leave aside for a moment the communications major's sneer at the First Amendment. Anderson offers a legal proposition: that "free speech" is constitutionally protected but "hate speech" is not. In American law, this is simply false. There is no legally recognized category of "hate speech," let alone any recognized exception to First Amendment protections for "hate speech." This is not subject to reasonable dispute. Please go sell ignorance somewhere else, Ms. Anderson; we're all stocked up here.

20

Judge Tim Grendell Was For The First Amendment Before He Was Against It

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Last week I described how Ohio judge Tim Grendell was abusing his contempt power to lash out at a critic, and how he justified his conduct in a puerile letter to the editor.

Jonathan Adler at the Volokh Conspiracy has picked it up, as has Instapundit and Watchdog.org. Any hope Judge Grendell has of a quiet resolution has been dashed.

With the publicity have come tipsters; Judge Grendell is apparently both feared and despised. One tipster pointed me to a time that Judge Grendell took a different approach to free speech.

In 2003 Grendell was an Ohio state representative. In the context of a symbolic and rather belated vote to ratify the 14th Amendment, he was quoted sneering at the Democratic sponsor of the vote as an illiterate:

Talking about the case that determined "separate but equal," the story said: "Grendell said Mallory should read the case, Plessy
vs. Ferguson, but he doubted Mallory would understand it. 'He's the only reason I might support the OhioReads program,'
Grendell said, referring to the state's volunteer tutoring program."

For what it's worth, Grendell is white and Mallory is black.

This generated condemnation from both Republicans and Democrats. Then-Representative Grendell defended himself, saying he was taken out of context and sounding a ringing endorsement of free speech:

The true irony of the situation is that had I made the comments attributed to me, it would have been my right to do so, without
censure or reprimand, based on my 1st Amendment Right to free speech," he wrote.

3

How did Judge Grendell descend from celebrating his constitutional right to be an ass in 2003 to mouthing platitudes about limits on free speech in 2015? What a curious journey for a "constitutional oriented judge and legal scholar."

17

Dr. Mario J.A. Saad Tries, And Fails, To Censor American Diabetes Association

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Dr. Saad is mad.

Dr. Saad is mad because of something bad — specifically, the American Diabetes Association, through its journal Diabetes, is publishing expressions of concern about some of his scholarly articles, and may formally withdraw them.

Expressions of concern — like formal withdrawal of past articles — are part of the peer review process. It's how scientific journals police themselves and call attention to questions raised about research they've published. Naturally they are a source of annoyance to the authors questioned, as I've written about in the cases of several legal threats against the blog Retraction Watch.

So when the ADA began questioning Dr. Saad's work, he and his lawyers at Deutsch Williams did not rely on the peer review process, or on advocacy or persuasion. Don't be ridiculous! This is America. So they sued.

Dr. Saad sued the ADA for defamation, claiming that they were harming his reputation by printing digital expressions of concern about his work, preparing a print run, and declining to publish him further until their concerns were assuaged. That much — the attempt to vindicate scientific propositions through litigation, rather than through . . . you know . . . science — is banal at this point. What makes Dr. Saad and his lawyers notable is the remedy they demand.

Dr. Saad demanded in his complaint, and sought through a motion, an injunction forcing the ADA to remove its expressions of concern, and prohibiting it from publishing them or withdrawing Dr. Saad's articles. This is aggressive, in the sense of patently ridiculous. Dr. Saad is demanding prior restraint of speech, something that is prohibited (at least as pre-trial relief) in almost all circumstances.

When you are asking a federal judge to do something patently unconstitutional, and you're not a federal prosecutor, you face a conundrum. Do you attempt to distinguish the decades of Supreme Court cases saying that the judge can't do what you want, explaining in creative fashion why they don't apply? Or do you just ignore the issue and hope it doesn't come up? Dr. Saad's lawyers went with the later strategy, which might be called Underpants Gnome lawyering. Their brief studiously ignores the First Amendment, the wall of prior restraint authority, and the equitable doctrine that defamation can't be enjoined.4 The ADA's brief in opposition is more or less "what the fuck, man?" with bluebooking and footnotes.

Lawyers employ Underpants Gnome lawyering because sometimes it works. It didn't this time. United States District Judge Timothy Hillman denied Dr. Saad's request for an injunction politely but firmly:

Whatever interest Dr. Saad has in preserving his professional reputation, it is not enough to overcome the heavy presumption against the proposed order’s validity. This is precisely the type of circumstance in which the law forbids courts from halting speech before it occurs. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625 (1931) (declaring unconstitutional a court order preventing The Saturday Press from publishing a defamatory newspaper); Krebiozen, 334 Mass. 86 (affirming denial of injunction that would have prevented the publication of statements harmful to medical researchers’ professional reputations). The appropriate remedy in cases where a “publisher is to print a libelous, defamatory, or injurious story . . . lies not in an injunction against publication but in a damages or criminal action after publication.” In re Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986).

This was not a close call.

Dr. Saad may still proceed seeking damages against the ADA, and might, hypothetically, get an injunction against specific statements found to be false after a full trial. But his effort to vindicate his scientific view through force of law has failed.

I offer no opinion on whether the ADA is right, or reasonable, in questioning Dr. Saad's research for scientific reasons. I got through my science/math/bio requirements in college through a Physics for Poets class in which I got a B+ by writing a speculative essay about antimatter derivative of 1950s Heinlein essays. But I do question the reliability of Dr. Saad's research on this basis: how can you trust the science of someone who tried to get a court order prohibiting public questioning of their conclusions? If a new therapy were based on a scientific theory that was defended not with peer review and the scientific method, but with litigation, would you trust it to be used on a loved one? I wouldn't. Dr. Saad may find that his litigiousness has harmed his credibility more than anything the ADA has ever said or done.

Hat tip to the folks at Retraction Watch.

61

Worthy of Contempt: Ohio Judge Tim Grendell Abuses His Office To Suppress Criticism

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Somebody mean bruised Tim Grendell's feels.

They didn't do it directly. Nobody marched up to Grendell and said "you're a petty, totalitarian thug" to his face. Nobody left a hurtful comment on his LiveJournal.

No, somebody said mean things about Tim Grendell in a private conversation with another person, a third party.

Tim Grendell caught wind of it. Now, generally, when people find out that someone is trash-talking them, they have a few options: they can rub dirt on it and walk it off like a goddamn grown-up, they can engage in debate, high or low, with their critic, or they can even sue the critic privately for some sort of redress of buttchafe.

But Tim Grendell isn't people. He's a judge. Specifically, he's a judge on the Geauga County Court of Common Pleas Probate and Juvenile Division in Ohio.

That gives Tim Grendell power — and he's not afraid to abuse it.

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With Great Power Comes Great Responsibility For Chip McGee's Feelz. And For Wombats.

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Bedford New Hampshire School Superintendent Chip McGee is a sensitive man. Chip McGee is sensitive to his duties as an educator. He's sensitive to the instruction and welfare of his students. He's sensitive to the constitutional limits on his power as a government official.

But mostly, he's sensitive to Chip McGee's butt. And Chip McGee's butt hurts. Chip McGee's butt hurts as though Chip McGee was "the Gimp" at Rod Stewart's last acid and cocaine-fueled anal wombat insertion party.

Why does Chip McGee's butt hurt so? Because feelz.

A number of students at Bedford High School were disciplined after making remarks on Twitter about Superintendent Chip McGee’s announcement on the social networking site that classes would resume on Wednesday.

It seems students said rude things about McGee's insistence they attend school the day after a blizzard. Chip McGee understands that the students have a right to speak their minds. After all, the Constitution guarantees even students the right to free speech. But with that great power comes a great responsibility, the responsibility not to upset Chip McGee.

I want to stress that the widespread rumors that Rod Stewart inserted a wombat into my anus are just that - rumors!

I want to stress that the widespread rumors that Rod Stewart inserted a wombat into my anus are just that – rumors! No credible witnesses have come forth to support these allegations. And if any do, they'll be suspended, and it will go down on their permanent records!

“Kids said some very funny, clever things,” McGee said on Thursday. “And some kids stood up and said, ‘Hey, watch your manners.’ That was great. And some kids — a few — said some really inappropriate things.”

And so Chip McGee suspended four of them, for tweeting, from the privacy of their homes, about just what an appalling dildo-bat Chip McGee actually is.

“It’s been a really good exercise in issues of students’ right to speech, on the one hand, and students’ and teachers’ rights to an educational environment that’s conducive to learning,” McGee said. “Kids have the right to say whatever they want about me.”

However, this does not mean students should expect to be able to make inappropriate comments on social media without consequences, McGee said — even though the tweets were sent outside of school.

Actually, the First Amendment means that students do have the right to say that Chip McGee is an appalling dildo-bat from the the privacy of their homes, even on social media, without governmentally-imposed consequences. And Chip McGee, for whatever reason the citizens of Bedford, New Hampshire in their wisdom decided, is the government. Schools may discipline students for speech that disrupts the classroom (shouting, during math class, that "Chip McGee is an appalling dildo-bat") or for speech advocating illegal activity,

But it is not illegal to call Chip McGee an appalling dildo-bat, or "the Gimp" at Rod Stewart's last anal wombat insertion party, from the privacy of one's home, or even on social media. In the first case, this is protected opinion (I sincerely and genuinely believe that Chip McGee is an appalling dildo-bat), and in the second, mere hyperbole. (It was probably just a ferret, or maybe a mongoose.) Particularly given that in Bedford, New Hampshire, Chip McGee is the government. He is The Man, as that wombat, and Rod Stewart, could assure you. And if these students and their parents sue Chip McGee, and win (as they assuredly would) he'll never pay a dime.

“The First Amendment right means you can say what you want, (but) it doesn’t mean that you are free of repercussion,” McGee said. “It can’t disrupt what we’re doing in school … If something disrupts school, and it (occurs) outside school, we not only can take action, we have to.”

McGee said he hopes that students will learn from this incident about “the line” of decent and appropriate commentary.

“You only learn that by checking where it is, and having something happen when you cross it,” he said.

"I support free speech, but" is the eternal cry of the government censor who knows censorship is illegal, but abuses his power because, fuck it, he's the government. In Chip McGee's case, it's a very big but. A but large enough to fit a wombat.

Or maybe a ferret or a mongoose.

UPDATE:

We tweeted these innocuous questions to Chip McGee earlier today.

No wombats, or ferrets or mongeese, were harmed during the making of those tweets. And yet Chip McGee has deleted his twitter account, in record time.

IT'S GONE.

Todd Kincannon Has Been Silenced, Or Something

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Last July I described how internet-famous troll Todd Kincannon had filed a federal lawsuit against South Carolina state bar officials, claiming that they were infringing upon his First Amendment rights by threatening him with attorney discipline based on his speech. There have been developments! Sort of.

Kincannon doggedly employs his modest talents to achieve notoriety, like the kid in Rudy if his goal had been to be an third-string insult comic instead of a Notre Dame football player. His litigation strategy has been less persistent. As I argued before, though Kincannon is a lawyer, his initial complaint looked less like a professional federal pleading and more like a LiveJournal post or possibly some sort of law-themed emoticon. Kincannon claimed, both in public and in unsolicited correspondence to me, that he had thrown the complaint together at the last minute to beat the statute of limitations, and would file an amended "more conventional pleading."

That was July 2014, six months ago.

It's not uncommon to file a complaint to beat the opposition to the courthouse, and then amend it to correct any errors or omissions. Most plaintiffs will amend quickly, before the other side files a response, so they don't need the court's permission. Kincannon did not, despite saying that he would. Months passed. Eventually the federal court, of its own accord, issued an order to show cause. The Court pointed out that (1) the summons it had issued had expired after 120 days when Kincannon didn't serve them on the defendants, and (2) the rules require the plaintiff to, as the Federal Rules of Civil Procedure put it, pull his thumb out of his ass.

Ignoring an order to show cause from a federal court is an atypical strategy, but Kincannon does not see himself as someone bound by convention. He didn't respond to the OSC. So a couple of days ago the Magistrate Judge recommended that the court dismiss Kincannon's suit for failure to prosecute. The assigned District Judge will likely follow that recommendation. The dismissal will be without prejudice, meaning that Kincannon could conceivably refile it. I, for one, would not want to return to a federal judge with a complaint previously dismissed for failure to prosecute. I would not expect good fortune.

It is possible, I suppose, that Kincannon has reached some sort of settlement with the defendants. I've never seen defendants accept a settlement that contemplated letting a case die like a pet rat forgotten in the garage, but it's possible. It's also possible that this is part of some shrewd legal strategy on Kincannon's part. Perhaps he has them now exactly where he wants them.

But I feel bound to repeat the question that skeptics asked from the start: was this all some sort of publicity stunt by Kincannon? Was his purpose to excuse his failure to deliver a book — called Racking-Fracking-Argle-Bargle-Libruls or something — though people had prepaid for it? Did he want to generate buzz around his book? Did he want to fund-raise? Did he just want attention? Given the history of state bars meddling in censorship, I was prepared to accept the proposition that there might be some substance to Kincannon's suit. But now — well. Perhaps other more sympathetic followers of the story will offer a plausible explanation. Or maybe Kincannon will explain.

It would be regrettable if Kincannon, through a crass and clumsy tactic, has diminished the credibility of the fight against bar association censorship.

Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

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Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

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Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

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This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued PissedConsumer.com for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for PissedConsumer.com in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending PissedConsumer.com.

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is www.inlawwetrust.com. No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se5, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the PissedConsumer.com case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

"Digital Homicide Studio" Abuses DMCA To Lash Out At Reviewer Jim Sterling, Gets Fair Use Wrong

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Frivolous abuse of the Digital Millennium Copyright Act is nothing new. We've seen fake poets, manufacturers,purveyors of anatomically impossible boobs, sociopathic revenge-pornsters, and legbreakers for totalitarian governments make false claims of copyright violations in an effort to censor online criticism.

So why should we be surprised that a computer game designer would abuse a DMCA takedown request to silence a negative review?

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Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

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New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time to light the Popehat Signal to find pro bono assistance for citizens threatened with a bogus and censorious lawsuit.

The cartoonish villain of this story is Roca Labs, whose belligerent attempts to silence critics inspired my post last month. Roca Labs, you may recall, produces a pink slime that one is supposed to eat to suppress the appetite. Roca Labs is pathologically adverse to criticism, and therefore has hit upon an increasingly familiar tactic — they require at least some of their customers to sign contracts promising not to criticize them at all. Based on those contracts, they filed a lawsuit against Pissed Consumer.com, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up PissedConsumer.com's defense.

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against PissedConsumer.com. Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.6 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

Roca Labs isn't a full Prenda yet, but by God, it's trying.

Those three defendants need help. Even when a suit is patently frivolous and vexatious, defending it — particularly in a distant state — is ruinously expensive. That's Roca Labs's purpose — not to win on the merits, but to silence critics through cynical abuse of the legal system. These three defendants can't afford to hire lawyers in Florida. If they don't get help, Roca Labs wins through manipulation of a broken system.

You can help. If you are a lawyer admitted in Florida, you can act, at least, as local counsel. If you are a lawyer in another state, you can help Florida counsel. If you're just someone with a voice on the internet, you can help get the word out about Roca Labs and its contemptible behavior, and help these people find pro bono legal assistance. (Some sort of fundraising campaign, at least for costs, is also a possibility, though the defendants should get independent legal advice about that.) You can also get the word out about the unethical and repulsive behavior of the attorneys who filed this suit, Nicole Freedlander and Paul Berger of the "Hurricane Law Group." Berger has also been involved in threatening bloggers and witnesses.

And finally, please help circulate and promote this question: why would any sensible person consume a weight-loss product from a company that sues customers who criticize its safety, value, or efficacy? Does that sound safe to you?

By the way, this is not the end of Roca Labs' bizarre behavior — stay tuned for more.

Fight evil.