Tagged: Free Speech

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.

Charlie Hebdo – Open Thread

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On behalf of Ken and myself, sorry. It would be difficult to write about this infuriating, monstrous crime without saying something one or the other of us would later regret. Perhaps later. Please feel free to discuss this atrocity among yourselves.

In the meantime, some cartoons, for your reading pleasure:

Charlie-Hebdo-Charia-en-Libye

 

CharliehebdoCharlie2Charlie

 

Charlie4

 

And finally, a reminder that France prosecutes people, indeed "national symbols," for speech far milder than what Charlie Hebdo had to say.

The goddess of free speech.

The goddess of free speech.

Vive La France, but change your laws. Never surrender.

Vote For Popehat's 2014 Censorious Asshat Of the Year!

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Having skipped a year, Popehat will now continue its tradition of polling you, gentle readers, to elect our Censorious Asshat of 2014.

Only people or entities that we've written about in 2014 are eligible. I've culled the many asshats down to a few, based on volume and vigor of censoriousness, ridiculousness, hubris, and an X factor that I know when I see. Noted censorious asshat Brett Kimberlin has ascended to our Censorious Asshat Hall of Fame and is no longer eligible. Don't be greedy, Brett.

Vote early and often! Here are the candidates:

Carl David Cedar, a Texas attorney who threatened blogger Scott Greenfield with violence and lawsuits when Scott criticized Carl for swiping someone else's blog content. In Aggravation: A rare example of threats that are longer than my analysis of them. In Mitigation: ultimately pathetic, like a college sports star gone to seed.

Crystal Cox, blogger and litigant, who won an important free speech victory even as she engaged in a deranged nationwide blitz of frivolous litigation against her critics. In Aggravation: Sued people, including yours truly, in 10 different federal courts for criticizing her. In Mitigation: batshit crazy.

Michiko Shiota Gingery, Koichi Mera, and GAHT-US Corporation, litigants against the City of Glendale, who filed a patently offensive and frivolous lawsuit on behalf of reactionary Japanese factions seeking to suppress a Comfort Women memorial in Glendale because history hurts their fee-fees. In Aggravation: revisionists and atrocity apologists. In Mitigation: none.

Professor Thane Rosenbaum, who tried to do for censorship what John Yoo did for torture: make a legal case for it. Rosenbaum put logic and First Amendment doctrine in stress positions in an effort to justify broad and unprincipled "hate speech" laws. In Aggravation: "Fire in a crowded theater." In Mitigation: As an academic, has had no exposure to adversarial testing of his awful legal theories.

Jim Ardis, Mayor of Peoria, who abused the power of the state to get search warrants to identify and raid someone who authored a clearly satirical Twitter account about him. In Aggravation: Lack of remorse, open use of lap-dog cops and judges. In Mitigation: Streisanded into the stone age.

Bergen Community College, which forced a professor on leave and required him to visit a psychiatrist because he posted a picture of his young daughter in a Game of Thrones t-shirt. In Aggravation: Went straight for the "OMG Virginia Tech think of the children!" excuse. In Mitigation: As modern college administrators, deprived of role models displaying common sense, proportion, or shame.

Dale D. Berkley, Senior Attorney with the United States Department of Health and Human Services, who sent a threatening letter to a blogger over a patently satirical post on government letterhead. In Aggravation: Your tax dollars paid for that. In Mitigation: what else is he going to do all day?

"Crisis Manager" Xavier Hermosillo, who was hired to help repair the reputation of the California town of Murrieta after its residents screamed at buses full of kids, and shrewdly elected to threaten a cartoonist with . . . we're still not sure exactly what. In Aggravation: YOU HAD ONE JOB. In Mitigation: To be fair, threatening cartoonists is a step back from screaming obscenities at kids on buses.

Miles Sisk, who sought to bring the mighty power of the University of Oregon government to bear against mean students who used memes to make fun of student senators. In Aggravation: Betokens doom of our civilization. In Mitigation: where's he gonna learn better?

Ares Rights, a shadowy firm that continues to abuse the DMCA in an effort to suppress reporting on and criticism of clients including the Ecuadorian government. In Aggravation: Persistent, utterly amoral. In Mitigation: managed to shut up Adam Steinbaugh for several minutes.

Roca Labs, which sells pink slime you eat to stop feeling so empty inside, and which is intent on one-upping Prenda Law by suing EVERYONE FOR ALL THE SPEECH. In Aggravation: Preposterously litigious and shamefully intolerant of criticism. In Mitigation: High potential for long-term entertainment and eventual cinematic flame-out.

Ken and Patrick of Popehat, who used Popehat's comments and Twitter feed as their own living room and ejected people who annoyed them when the mood struck. In Aggravation: Remorseless, rude, absent-minded, foul-mouthed, generally douchey. In Mitigation: Only idiots think that's censorship.

Voting closes at 5:00 Pacific Time on January 2, 2015.

This poll is closed!
Poll activity:
Start date 2014-12-29 12:40:09
End date 2015-01-04 11:22:00

Poll Results:

Who shall be Popehat's Censorious Asshat of 2014?

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

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

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

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The Speechfather

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It was late when Zach arrived back at the mall from the newspaper office. The entrance was blocked by a restraining order, partially shredded. Zach and Tom walked on, past the two Human Rights Commissioners the government had stationed to prevent further Hate Speech against the Corleone family, and the good name of Italian-Americans everywhere. The door was opened by another Human Rights Commissioner. wearing an outsized coat and vest over a big belly. Zach thought the Commissioner sure was fat, then banished that thought, as a form of body-shaming. As the over-sized Commissioner held the door, Zach reflected:

Body-shaming is ubiquitous and abhorrent; it happens everywhere, to pretty much everyone, at one time or another. It is especially levied against women, who are shamed for being skinny, for being tall, for being short, for having large breasts, for having small breasts, for having tattoos, for not having tattoos, for body hair, for dressing as they will, for being sexy, for being prudish, for being smart, for having interests outside STEM. Women are shamed at some point for being pretty much anything while also being female, including for being ugly (and failing to serve a purpose as a beauty object) and for being pretty (which must mean they are vapid or dumb). Zach shuddered that he had fallen into the trap of fat-shaming. The vest was no doubt padded with writs, for the protection of the Corleone family and others against harassment and hate speech, but even if it wasn't, the Human Rights Commissioner had a right to dignity, and to revel in his own body.

Inside, Sonny, Clemenza, and Tessio were waiting. Sonny came to Zach, and took the young student-columnist's head into his hands, saying kiddingly, "Beautiful, beautiful, that police captain sure knocked you up real good."

It was Tom who spoke first, over the stunned objections of Clemenza and Tessio: "Sonny, 'knocked up' is an outdated phrase used by anti-woman bigots and mansplainers to describe pregnancy. It implies, to right-thinking people, an element of physical violence, and if I may say so, using that term is a monstrous form of Hate Speech. It denigrates women, and it denigrates choice, the choice that each woman has to decide for herself whether to terminate an unwanted fetus."

"Sorry Tom," Sonny muttered. "It won't happen again." Zach and Tom walked into the room, and closed the door.

"Jesus Christ, Zach, the old man's barely talking," said Clemenza.

Tessio spoke up, "Pete, has it occurred to you that Zach might not be a Catholic, that Zach might not be a Christian, that Zach might be an Atheist, or a Muslim, or a Jew? When you invoke that name, you're excluding people of faiths outside Christianity (which I might add is responsible for 2,000 years of genocide and repression), and people of no faith. You're talking Hate Speech, and if weren't for the law of omerta, I'd turn you in right now."

Sonny added, "Sal, you're right, but I should add that referring to the Don as 'the Old Man' is ageist. It connotes senility, and at the same time grants him an authority he doesn't necessarily deserve. We can do better than this. It's a form of Hate Speech, and it should be against the law, if it isn't already."

All five men remained silent, for a few minutes, reflecting on their crimes.

Finally, Zach broke the silence. "What have we heard about the Turk?"

"JESUS CHRIST!" the other four interjected, then hung their heads in shame.

"Mister Sollozzo is holed up with that police captain," Tom said at last. "He's untouchable with that kind of protection. What you have to understand is that no one has ever attacked a New York police captain. All of the five families, and the Human Rights Commission, would turn against us."

"You get me a gun, and I'll kill him," said Zach. "And I won't do it out of any racial or religious animus. I'll do it out of respect for my father."

Sonny hugged Zach, violently, smiled, and said "Tom, this is speech, and this man's taking it very personal. It ain't like the war. You gotta get up on top of them until you see the whites of their eyes and then BADA-BING! All over your nice Ivy League suit!"

Clemenza sighed, "Sonny, I wish you hadn't said that. The Bada-Bing is a strip club in a racist melodrama that denigrates Italian-Americans as gangsters, sexists, and thugs. The media have promoted this stereotype through a plethora of mafia movies. It's fair to say that a disproportionate number of Italian-Americans have been portrayed as hoodlums by Hollywood. Though not to the same extent as people of color, marginalized European-Americans, such as Italian-Americans, Greek-Americans, Serb-Americans, and Ukrainian-Americans, are generally reduced by screenwriters to a caricature of what Anglo-Americans deem them to be. Tragically, this marginalization at the hands of White society leads these maligned peoples into prejudicial conduct against women and people of color, the true victims of Hate Speech. If we're ever to move forward, the sort of speech in which you just engaged needs to be outlawed."

"So there's no hope for us?" Zach asked.

"I guess not. We should turn ourselves in to the Human Rights Commissioners," Tessio agreed.

And so ended the Five Families War of 1946.

With Apologies To Baron Macaulay

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XXVII

Then out spake prim Horatius,
The Censor of the Gate:
"To every persyn upon this earth
Butthurt cometh soon or late.
And how can we do better
When facing fearful speech,
Than shut down all discussion,
And stop the crimethink's reach?

XXVIII

"As for the tender mother
Who knits a woolen toy,
Best send the cops to brace her
Although it gives her joy
,
It matters not what we think,
We privileged with some sense,
Call the cops if anyone
May somehow take offense.

XXIX

"Haul down the books, Oh Councils,
With all the speed ye may;
I, with the state to help me,
Will halt bad speech in play.
If the people won't obey us
And alter all their norms,
Then force of law we'll bring to bear,
and stop extremism in all its forms.

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

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This crazy litigant goes to 11.

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

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

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

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

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

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

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

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

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

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

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

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

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

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

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

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Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

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

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

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

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against PissedConsumer.com. Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.2 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

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

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

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

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

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

Fight evil.

Lena Dunham, Meet Barbara Streisand — Have You Met?

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Lena Dunham, who apparently is famous for a HBO show I haven't watched, has a memoir out. I don't approve of 28-year-olds having memoirs unless and until they have been shot for advocating for the downtrodden or something, but Ms. Dunham is hardly the first to commit this minor sin.

This weekend Ms. Dunham became very upset because some people — mostly on conservative political websites — described her memoir as a confession to sexually abusing her little sister.

Here's how "Truth Revolt" characterized quotations from the memoir:

In the collection of nonfiction personal accounts, Dunham describes using her little sister at times essentially as a sexual outlet, bribing her to kiss her for prolonged periods and even masturbating while she is in the bed beside her. But perhaps the most disturbing is an account she proudly gives of an episode that occurred when she was seven and her sister was one.

You can read the subsequent quoted passage for yourself.

Now Ms. Dunham has, according to Truth Revolt, threatened them with a lawsuit and demanded that their post be taken down. Ben Shapiro, author of the pieces, has not yet responded to our request that he post the threat letter. So we only have his word that Ms. Dunham made this demand and threat. However, I submit that Mr. Shapiro has a certain amount of credibility on the subject of overheated reactions to things.

If Ms. Dunham is alleging that the original Truth Revolt article about her is defamatory, she is wrong — unless it has deliberately and extensively misquoted her book. Truth Revolt has admitted that the article originally and incorrectly said that she was 17, not 7, when one of the incidents described took place. But absent proof that Truth Revolt made that misstatement intentionally, that's incompetence, not the actual malice required to prove up defamation of a public figure like Ms. Dunham.

Truth Revolt's characterization of Ms. Dunham's memoir is not defamation. It's classic opinion based on specific disclosed facts. You might think that Truth Revolt's interpretation of Dunham's stories of her conduct with her sister is irrational, or unfair, or politically biased, or cruel. That doesn't make it defamatory. If I linked to one of Ben Shapiro's articles and said "this article proves that Ben Shapiro is a secret lizard person sent by Obama to discredit conservatives," that wouldn't be defamation either. It might be crazy, but it's my statement of opinion based on Shapiro's own words. If Truth Revolt had said "people have told me that Lena Dunham molested her sister" or "I have reviewed documents that suggest to me that Lena Dunham molested her sister," that would be different — that would be a statement of fact, or a statement of opinion based on undisclosed facts.

So: Ms. Dunham will fail, sooner or later, if she sues over this article. Her threat, and her reaction to the coverage, are likely to trigger the Streisand Effect, driving orders of magnitude more eyes to the characterizations of her memoir. She's media-savvy enough that I can't help but wonder whether that's her intention in the first place. It will sell books.

I haven't read the memoir and have no plans to do so. I find some of Dunham's descriptions of her conduct (as quoted) creepy and unsettling. But I also think that classifying a seven-year-old's behavior as sexual abuse is, at least, problematical. (Being disturbed by the tone Dunham uses to relate her seven-year-old behavior is a separate issue.) I seriously doubt that the discussion of abuse of or by children will be advanced by a dispute that is deliberately politically charged.

American Spectator Surrenders To Vexatious Litigant and Domestic Terrorist Brett Kimberlin

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Last year I wrote about how vexatious litigant and unrepentant domestic terrorist Brett Kimberlin filed a blatantly frivolous RICO suit in federal court in Maryland seeking to silence and retaliate against those who had criticized him.

Now the American Spectator, a conservative magazine, has ignominiously surrendered to him.

Many were suspicious the Spectator had reached some agreement with Kimberlin when he abruptly dismissed the American Spectator from the RICO case. He did so without serving the Spectator and with prejudice — meaning that he cannot re-file the claim. Those suspicions were confirmed when articles about Kimberlin disappeared from the site. As Lee Stranahan first reported, past articles about Kimberlin on the site have mysteriously disappeared. Most don't seem to be cached anywhere, with the exception of this one by Robert Stacy McCain, the Spectator's co-defendant in the RICO case.3 Most are just gone.

Settling a lawsuit is generally a business decision. When clients tell me they don't want to settle because of the principle involved, I explain that the justice system is terrible at sorting out principles. It is very good at putting people in jail, and mediocre and inefficient at moving money from one person to others (mostly to lawyers), but it's a terrible vehicle for vindicating right or wrong. Generally settling a lawsuit — even a vexatious one — is a rational economic decision by a defendant, taking into account a broken system and the ruinous cost and distracting nature of litigation.

But the American Spectator is not most defendants, and Kimberlin's RICO case is not a typical vexatious lawsuit.

The American Spectator purports to be a magazine — it purports to be about journalism and vigorous expression of opinion. It's true that it's highly partisan, but not unusually so. It's sort of a Salon for people who think Hilary Clinton killed Vince Foster. De gustibus non est disputandum. But it relies upon free speech. The First Amendment is essential to its operation. Indeed, even this week it was urging defiance to what it saw as Democratic Party threats to free speech:

Will we keep the First Amendment safe from Harry Reid? asks @jpcassidy000. http://ow.ly/BEsKy

Moreover, the Spectator has traditionally urged defiance in the face of politically motivated defamation claims. Such exhortations to resist "liberal" "tyranny" are common to the Spectator. And any publication — from the New York Times to somebody's LiveJournal page — relies for any credibility upon the proposition that it will say things even if some people do not like them.

But the American Spectator caved, and removed content.

Was it about the expense of litigation? True, it's expensive. But as far as I can tell the American Spectator never sought pro bono help from any free speech networks. Even though I experienced considerable difficultly when I sought pro bono help for the individual codefendants, it is very likely that an entity like the Spectator would have been able to find free or reduced-cost help, perhaps from ideological allies. And bear in mind that some of the individual co-defendants, even though they are not lawyers, have been vigorously and successfully litigating against Kimberlin pro se.4

Did the American Spectator have doubts about the merits of the case? Did it think Kimberlin might have a point? If it thought that, it is not competent to evaluate such things. Kimberlin's Second Amended Complaint is vague and ambiguous about his claim against the Spectator:

Defendant The American Spectator published numerous defamatory articles by Defendant McCain and then removed them. Defendant McCain complained to the editor and the articles were then republished in February 2014 with different urIs. The sheer number of articles published by the American Spectator about Plaintiff demonstrates malice an intent to harm him and his business prospects. For example, in one, titled "Terror By Any Other Name," Defendant McCain imputes that Plaintiff was involved with swattings . . .

The complaint goes on to quote one of the stories at length without specifying what is false or defamatory about it.

As I have written before, the claims are patently frivolous. Some of the scrubbed articles rely on published court opinions and newspaper articles to tell Kimberlin's history. Others discuss his lawsuits seeking to quell speech. One of them quotes my analysis of why epithets used against Kimberlin are protected opinion. Moreover, even if the American Spectator honestly (but stupidly) thought that some portions of one or more of the articles were defamatory, that does not explain or excuse them scrubbing all mentions of Kimberlin from their web site. Vexatious and censorious litigants frequently demand that all mention of them be removed; actual journalists or commentators worth reading don't do it.

Most litigants settle. But some litigants are, or should be, different. Their cowardice in the face of frivolous litigation impacts everyone. Universities — which rely on free expression — are different, which is why it was unacceptable for the University of St. Thomas School of Law to pay money to vexatious litigant Joseph Rakofsky rather than defend the right to write about public court proceedings. Any institution that bills itself as a "magazine," that has pretenses to journalism or commentary, is different as well. American Spectator has a journalistic and social obligation to defend itself and therefore defend free speech against censorious litigation. By surrendering and scrubbing content, the Spectator has abetted and encouraged abuse of the legal system and emboldened people like Kimberlin to sue to remove speech they don't like. They've betrayed their purpose. That's unacceptable.

It would be inaccurate to say that the American Spectator will lose credibility generally as a result of this decision. Its breathless partisanship and assorted oddities limit its credibility to its target audience of the like-minded. Doing this will wound its general credibility in the sense that the Weekly World News would hurt its credibility by doing a very one-sided hit piece on Bat-Boy. But this surrender will, and should, eviscerate its credibility with its target audience and its readers. First, how can it be taken seriously as an institution willing to speak truth to power if it caves to a frivolous lawsuit by a domestic terrorist?5 Second, how can they be taken seriously as a conservative institution that will question liberals, when they yield to a blatant attempt to abuse the legal system to retaliate against conservative viewpoints?

No. They're done.

A number of serious thinkers and good writers have written for the Spectator over the years. It's possible for a serious person to write for an unserious publication. (I have to keep telling myself that, since I wrote a couple of things for Salon.) But at some point it's fair to ask a writer why they are associating with a particular publication. I propose that we begin to ask that of anyone writing for the American Spectator — by email, by Twitter, by whatever medium available. Take, say, Ben Stein. You're an in-print and on-screen tough guy, Ben. Why would you continue to write for an institution that acted this way? Just asking.

I wrote to the American Spectator and its Managing Editor seeking comment, but did not receive a reply. I would like to ask them some questions. Did they even attempt to find someone to offer a vigorous First Amendment defense? Did they pay Kimberlin money — money he will use to sue other critics? If they think they faced liability risk, what particular statements of fact do they think were false? And is this going to be a thing now?