[AP: Ville de Granby, Québec, Canada] Shouting their slogan Je suis important, vous ne pouvez pas irriter mon cul délicate, public employees celebrated a legal victory over internet abuse this week in Granby, a town in southern Quebec.
That victory came when the Granby municipal council unanimously passed an amendment to expand Article 17 of the municipal code. For years that code has forbidden the populace to "provoke, insult, revile, blaspheme or harass" police officers or municipal employees in the course of their duties. Last week's amended explicitly expanded the ban to prohibit insults online or in social media.
"This measure patches a gaping hole in our protection," said Robert Riel, deputy mayor of Granby. "People felt free to insult public employees online. Now they know they can't." Riel — occasionally pausing to collect himself — described how his ability to do his job had been ruthlessly disrupted by citizens criticizing his competence, his policy choices, and his 2010 arrest for attempting sexual intercourse with an award-winning snowman in Granby's public square during the town's Winterlude festival.
"That snowperson was extremely realistic and provocative," Riel added. "But my feelings are just as real."
Though it had strong support from elected officials, local police were the driving force behind the recent amendment. For two years, Granby law enforcement has been the target of relentless criticism, questioning, and even satire by the Facebook group Les policiers zélé de Granby, without any regarding to their rights as public officials and Canadians to be protected from offense. Some of the unflattering commentary was not even in French. Marco Beauregard, directeur of the department, recounted the toll that insults have taken. "My officers are out there ever day, putting themselves on the line," he said. "I owe it to them, and to their families, to do everything I can to make sure they come home at the end of the shift with their feelings intact."
Officers have reported being upset, disquieted, and even hurt by social media comments. "How can a public officer do his or her job," Beauregard demanded, "when people feel free to question the way they do it — and even to mock them? What makes them think they can talk about whatever they want?"
"My journey of improvement on anger-management issues is not an appropriate topic of public conversation, especially after last September," argued Beauregard, referencing an incident that led to the partial destruction of a traffic barrier, two police cars and the lobby of a local Tim Hortons.
"Being Canadian means standing up for your rights," said municipal council member M. Pascal Bonin. "That's all we are doing — using our authority to stand up for our right not to be insulted. It's a fundamental right, and it shouldn't yield to anything."
Bonin himself has been the target of rude jokes regarding his name, despite his repeated and patient explanations that it is pronounced Bon – eeen. "If citizens can say what they want about civic employees, you're going to see the whole culture of public life change," he said. "Before you know it, the only sort of people who will run for office or take a public job are the hardened sort that can just shrug off criticism as part of their job, or who think that they are only there to serve the public."
"And what would that look like," Bonin asked, shuddering.
Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.
I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.
If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.
That's the difference between me and a federal employee.
The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.
Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.
In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:
So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.
Eventually Judge Criss ordered the prospective juror arrested:
Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –
The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.
Juror No. 48: Okay. Then – –
The Court: Have a seat, sir.
Juror No. 48: I guess they have to visit me.
The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.
Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."
Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.
But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.
Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.
These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.
That's the justice system.
It was inevitable.
I expected that in the wake of the attempted terrorist assault on a "draw Muhammad" event in Texas, people would write dumb things about speech.
American journalists have not disappointed me.
Well, they have disappointed me. But they've done it . . . . oh, you know what I meant.
It's time for an update on the exploits of Prenda Law, that team of crooked, bumbling copyright trolls that's been stomped by judges nationwide.
Today, the United States Court of Appeals for the Ninth Circuit heard oral argument in a Prenda case. Prenda's principals have appealed Judge Wright's catastrophic May 2013 sanctions order against them. It was worth the long wait for court-watchers — though probably not for Prenda.
Judge Wright faced complex problems: given that Prenda had dismissed its copyright-trolling case, what sort of sanctions power did he retain, and what sort of due process did he have to extend to the Prendarasts to invoke that power? On appeal, Team Prenda argues that Judge Wright's sanctions and attorney fees award exceeded his power because (1) Team Prenda's inviduals — like John Steele and Paul Hansmeier — were not properly before the court, and (2) Judge Wright effectively levied criminal sanctions, triggering procedural rights that he did not extend to Team Prenda. John Doe — the defendant who triggered this whole escapade, successfully represented by Morgan Pietz — argued that the bizarre and extreme facts supported all of Judge Wright's order under applicable law.
It's foolish to bet on specific outcomes based on oral argument. But that's the kind of fool I am. I predict that the Ninth Circuit will uphold part of Judge Wright's sanctions order — the part that represents a civil sanction — and send the case back to the trial court for a more complete hearing on criminal sanctions.
That's not good for Prenda.
I'm waiting for the Supreme Court to decide Elonis v. United States, which may or may not clarify the difference between "true threats" and speech protected by the First Amendment. It's possible that the Supreme Court will clarify whether a "true threat" must be both objectively threatening (that is, a reasonable person hearing the threat would believe it to be a sincere expression of intent to to harm) and subjectively threatening (that is, the accused intended for the threat to be taken as a sincere expression of intent to do harm). Or it's possible that the Supreme Court will merely decide whether the federal interstate threat statute requires both.
In the meanwhile, let's look at a kind of case in which the distinction might make a difference.
Paul Alan Levy reports that the D.C. Circuit has applied the refinement reflected in Shady Grove of the Erie doctrine to preclude application of state anti-SLAPP laws to cases where jurisdiction is premised on diversity of citizenship.
I was perfectly clear.
That was literally gibberish.
Fine. Fine. I'll explain. Will that make you happy?
Too bad. I'm doing it anyway.
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.
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?
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.
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.
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.
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.
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.
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.
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?
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."
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.
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.
They're all damned lucky to be alive, as are their family members and pets.
Calling an armed law enforcement response to someone's house is attempted murder.
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
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.