Tagged: Free Speech

39

Do Judges Have Inherent Dignity?

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According to Justice Anthony Kennedy, the Constitution provides all Americans a right to "equal dignity in the eyes of the law."1 That's nice in theory I suppose, but in the America where I grew up dignity had to be earned, and maintained, by correct behavior and continued demonstration of good character. Dignity built up over many years could be thrown away in seconds by one rash or foolish act.

That's just what Judge Mark Mahon, Chief Judge of Florida's Fourth Circuit Court in Jacksonville, is doing to his own dignity. Over the course of a lazy three day weekend, Judge Mahon beclowned himself and disgraced his office. He did so by subverting the United States Constitution, which he is sworn to uphold and protect, in a vain attempt to protect that now vanished dignity.

Here's the story.

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17

What Charles Carreon could teach ICANN

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Popehat is happy to offer a new guest post from Cathy Gellis.

There is no question that the right of free speech necessarily includes the right to speak anonymously. This is partly because sometimes the only way for certain speech to be possible at all is with the protection of anonymity.

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.

In short, remember Charles Carreon? (more…)

70

Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is

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Spanish-language network Univision has cancelled its telecast of the Miss America pageant in the wake of Donald Trump's characterization of Mexicans, and Trump has now sued Univision in response. The lawsuit, filed in state court in New York, is here.

I won't opine on Trump's contract-related claims without reading his agreement with Univision. But Trump and his lawyer, Jeffrey L. Goldman of Belkin Burden Wenig & Goldman LLP, have also included a defamation claim. As befits Trump, the claim is loud, vulgar, and stupid.

The defamation claim arises from Univision President of Programming and Content Alberto Ciurana using Univision's Instagram account to post photos of Trump and mass murderer Dylann Roof side by side with the words "no comments." Ciurana was no doubt thinking of Trump's characterization of Mexican immigrants:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

Trump claims that Univision and Ciurana have broadcast false statements about him, and demands $500 million in recompense. But the defamation claim itself doesn't specify what false statements Trump is upset about; it only refers back to the factual recitation of the complaint. That section, in turn, only states that Trump made "insulting remarks about Mexican immigrants" and vaguely refers to (without printing or describing precisely) the Instagram post. Remember: vagueness in defamation claims is the hallmark of meritless thuggery.

As Eric Turkewitz points out, Trump's defamation claim is sanctionably frivolous. Ciurana's post wasn't a potentially actionable false statement of fact. It was a satirical statement of opinion — a hyperbolic assertion that Trump's actions show him to be a bigot. Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.

Trump's defamation claim also plays into the vapid modern narrative that vigorous criticism impairs First Amendment rights. Trump and his lawyers refer to "Univision's attempt to suppress Mr. Trump's First Amendment rights and defame his image," referring back to the Instagram post. In the same breath, they complain of "Univision's dubious efforts to create a false narrative." Trump's speech is protected and should be lionized; speech criticizing it is illegitimate and unprotected. Trump's lawyers sometimes make this very stupid argument within the same sentence:

Univision, in an obvious attempt to politicize the situation and suppress Mr. Trump's right to free speech, including his views on both trade and illegal immigration along the U.S.-Mexican border, has made a concerted effort, upon information and belief, in collusion with others, to wage war against Plaintiffs in the media.

I sympathize with attorney Jeffrey L. Goldman. Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher. But no matter how freakishly swollen a client's ego, an ethical lawyer is supposed to refrain from filing vexatious publicity-seeking claims. Goldman failed at that ethical obligation. Shame on him. And Trump? The man clearly lacks the capacity for shame.

50

No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas

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Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: "well, citizens on the grand jury thought that there were grounds to issue a subpoena."

No.

In fact, hell no, or if you prefer, bless your heart, no.

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36

Is "No, I Didn't Do It" Defamatory? The Bill Cosby Defamation Case

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Bill Cosby's recently been accused of lifelong serial rape and sexual abuse, sometimes involving drugging women. He's responded — as celebrities tend to — with broad denials and suggestions that his accusers are lying. That public relations move has provoked a defamation case filed in federal court in Massachusetts posing a significant question: when you vigorously deny an accusation, do you defame the accuser as a liar?

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139

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

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

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

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

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

The answer lies in the everyday arrogance of unchecked power.

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87

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

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

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

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

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

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39

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

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

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

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

You may recall that the trial court dismissed the entire case based on two points. First, the court agreed with us that Ms. Naffe did not state any facts showing that Mr. Frey blogged in his official capacity as a Deputy District Attorney, and therefore her Title 28 U.S.C. section 1983 claim for civil rights violations "under color of law" could not survive, because Section 1983 only applies to state actors. Second, the trial court — on its own — questioned whether Ms. Naffe could prove the $75,000 in damages necessary for diversity jurisdiction2, and eventually found that she had failed to make a showing of sufficient damages.

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

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

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

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

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

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

571

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

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

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

Because these twerps mouthed off about a judge.

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24

Minnesota Court Rules That Criminal Libel Statute Is Unconstitutional

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

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

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

Violation of subdivision 2 is justified if:

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

(2) the communication is absolutely privileged; or

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

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

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

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

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

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

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

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

85

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

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American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

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45

Was Ebony Dickens' Facebook Post Criminal?

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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.

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