Tagged: Free Speech

79

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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40

Lawsplainer: Why The D.C. Circuit's Anti-SLAPP Ruling Is Important

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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.

Wait, what?

I was perfectly clear.

That was literally gibberish.

Fine. Fine. I'll explain. Will that make you happy?

Probably not.

Too bad. I'm doing it anyway.

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72

"Safe Spaces" And The Mote In America's Eye

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My three kids are sarcastic and irreverent. This isn't a shock to anyone who knows me. Their mouthiness can be irritating, but usually I manage to remember that I don't set much of an example of rhetorical decorum.

Maybe I should start giving the same consideration to other people's kids.

For some time I've been mean to university students who feel entitled to a "safe space" — by which they seem to mean a space where they are insulated from ideas they don't like.

I call these young people out for valuing illusory and subjective safety over liberty. I accuse them of accepting that speech is "harmful" without logic or proof. I mock them for not grasping that universities are supposed to be places of open inquiry. I condemn them for not being critical about the difference between nasty speech and nasty actions, and for thinking they have a right not to be offended. I belittle them for abandoning fundamental American values.

But recently a question occurred to me: where, exactly, do I think these young people should have learned the values that I expect them to uphold?

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81

Garry Trudeau Punches Down

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

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

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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.

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.

1

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.2 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.

A Few Questions For The New York Times About Depictions of Muhammad

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In the wake of the Charlie Hebdo massacre in Paris, some media outlets have published pictures of the cartoons that were terrorists' purported justification for slaughter. Some have not. Some have steered a bizarre middle course and shown people holding blurred cartoons.

The New York Times has elected not to publish the cartoons depicting Muhammad. The Times' public editor explained the decision as follows:

Mr. Baquet told me that he started out the day Wednesday convinced that The Times should publish the images, both because of their newsworthiness and out of a sense of solidarity with the slain journalists and the right of free expression.

He said he had spent “about half of my day” on the question, seeking out the views of senior editors and reaching out to reporters and editors in some of The Times’s international bureaus. They told him they would not feel endangered if The Times reproduced the images, he told me, but he remained concerned about staff safety.

“I sought out a lot of views, and I changed my mind twice,” he said. “It had to be my decision alone.”

Ultimately, he decided against it, he said, because he had to consider foremost the sensibilities of Times readers, especially its Muslim readers. To many of them, he said, depictions of the prophet Muhammad are sacrilegious; those that are meant to mock even more so. “We have a standard that is long held and that serves us well: that there is a line between gratuitous insult and satire. Most of these are gratuitous insult.”

“At what point does news value override our standards?” Mr. Baquet asked. “You would have to show the most incendiary images” from the newspaper; and that was something he deemed unacceptable.

I have questions for the Times in light of this policy.

1. Does the Times maintain a list of gratuitously offensive types of expression, and act based on that list, or does it address items on a case-by-case basis? If there is a list, is it public?

2. How big does a group have to be for the Times to accept its assertion that particular expression is offensive?

3. What percentage of a group must view expression as offensive for you to refrain from that expression? In other words, what portion of Muslims must find depictions of Muhammad to be gratuitously offensive for you to refrain from that expression?

4. Do you consider the degree of offense within a particular group? How do you measure that degree?

5. If there is dissent within a social or religious community about whether something is gratuitously offensive, how do you decide which faction to listen to?

6. Do you consider whether claims to offense may be politically motivated? For instance, if some American group (say, religious conservatives) asserted loudly that use of terms like "Happy Holidays" was gratuitously offensive, would you accept that, or would you ignore it on the basis that it was part of a "culture war?" If Americans claimed that the Flying Spaghetti Monster is gratuitously offensive because it is calculated to mock religion, how would you evaluate that claim?

7. Do you consider the recency of claims of gratuitous offense? If the claims arise relatively recently — when in the past the conduct was tolerated or did not occasion great statements of offense?

8. Does it make any difference to your decision that a particular group will react to what it sees as "gratuitous offense" with violence? Follow-up: if you do consider that, do you evaluate whether responding to threatened violence by not publishing something may encourage more threatened violence?

9. Has the New York Times ever decided not to run a religious image other than Muhammad on the theory that it would be sacrilegious or gratuitously offensive? Which one?

10. The Times has previously run anti-Semitic cartoons when they are in the news, "Piss Christ," pictures of a painting of the Virgin Mary smeared with dung, and pictures of Westboro Baptist protesters in vivid anti-gay shirts. Is it the Times' position that those decisions can be reconciled with this one, or is this a change in policy? If it is a change in policy, is it intended as an institutional one, or one that just remains during the tenure of a particular editor?

11. Please consider the cover of the new post-massacre Charlie Hebdo:

hebdo

Is this picture, leaving offense aside, newsworthy? If so, will you weigh that newsworthiness against the offense you believe it will give, or apply a categorical ban? Do you believe that words can adequately convey the literal, figurative, and emotive impact? If someone asserts that the picture is offensive not just as a depiction, but as a caricature, can your readers evaluate that claim without looking at the picture?

12. Are there particular staffers at the Times who specialize in evaluating and advising about degrees of offense? How are they trained?

13. Do you have a plan for what to do if a group expands its assertions about what is offensive? For instance, suppose that some Muslims begin to assert — vociferously — that depictions of all those it counts as prophets (including Jesus) are offensive and must be avoided, how would you evaluate that claim?

14. There are, as you know, different groups within Islam. What if a reform group began encouraging depictions of Muhammad as a signifier of reform, asserting that the contrary interpretation is false, and that those who attack depictions are wrong about Islam? How would you decide which faction to avoid offending?

15. Let's say some blogger starts a trend of using this emoticon: @[–<. It is widely understood that the emoticon is meant by its users to depict Muhammad, in an effort to illustrate that bans on depictions are unprincipled and can easily be made ridiculous. Would you run the emoticon? Or would you just describe it? How would you decide?

16. Imagine that a segment of Muslims begins to assert that it is sacrilegious to print Muhammad's name without a ṣalawāt like "pbuh." Are there conditions that would arise that would lead you to do so? What are those conditions? Are violence, or threats of violence, one of them?

I'm just asking questions.